Petition — Ohio v. Smith

Reprome Court, Ua

FILED

DEC

12 1979

IN THE oMICHARL ROBAK, JR., CLERR

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

79-9278

NO.

STATE OF OHIO,

Petitioner,

Vs.

RICARDO SMITH,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

SIMON L. LEIS, JR.

Prosecuting Attorney

LEONARD KIRSCHNER

Assistant Prosecuting Attorney

THOMAS P. LONGANO

Assistant Prosecuting Attorney

JOSEPH G. CARR

Assistant Prosecuting Attorney

420 Hamilton County Court House

Court & Main Streets

Cincinnati, Ohio 45202

Attorneys for Petitioner

BERR RARE SRA > pe RRSP DARE ST EER IS PI AAT SIO SE NA MA,

COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450

TABLE OF CONTENTS

Page

Tae ee ee eee. ww wees. Il

RE a ]

EE ar ]

CONSTITUTIONAL AND STATUTORY AND

OHIO SUPREME COURT RULES PROVI-

OE 2

QUESTIONS PRESENTED ............... eng eee

STA Rees Ge Pee Gaee ee es. 4

REASONS FOR GRANTING PETITION FOR

WRIT OF CERTIORARI TO THE UNITED

STATES SUPREME COURT .......... eice t. |

Ge oe

APPENDIX A

Supreme Court of Ohio Order of 9/13/79 ...... la

APPENDIX B

Supreme Court of Ohio Opinion of 6/13/78 ...— 2a

APPENDIX C

Court of Appeals of the First Appellate District

of Ohio Decision of 6/13/78 .............. ee

ll.

TABLE OF AUTHORITIES

Cases: Page

California v. Green, 90 S. Cr. 1930 (1970) ...... 8, 9, 1

Dutton v. Evans, 91 S. Ct. 210 (1970) ............ 8

Harvey v. Kropp, 458 F (2d) 1054 (i972) pg. 1057... 11

Mattox v. United States, 15 S. Ct. 337 (1895) ..7, 8, 10

Phillips v. Wyrick, 558 F. 2d 489 (8th Cir. 1977) .. 11

State of Ohio v. Roberts, 55 O.S. (2d) 191 (1978) ..6, 13

Turner v. Craven, 475 F. 2d 769 (9th Cir. 1973) .... 9

United States v. Allen, 409 F. 2d 611 (10th Cir.

RRP SEM icarncin er crearmeeotie mye: gah Sc nee yo WET 9, 10

United States v. Bell, 500 F. 2d 1287 (2nd Cir. 1974) . 9

Statutes and Constitutional Authorities:

Mich. Statute, Ann. Sec. 28, 1049 (1954) .......... 12

Michigan Statute. Mich. Comp. L. Ann. Sec. 768.26

SOU, Giese Latah ves Sade ea cc 4; 12

Ohio Revised Code, Section 2945.49 ........ 2, 4,5, 13

Ohio Rules of Criminal Procedure, Rule 5(B) (2) .. 6

Ohio Rules of Criminal Procedure, Rule 5(B) (5)... 6

Rule IX, Section 2, Ohio Supreme Court Rules

I yee Sek etary RE Cd CENT AMERY SON 3

Rule 804, Federal Rules of Evidence.............. 9

Sixth Amendment, Constitution of the United

ee et a inn Vig ewe e ees 2, 4, 5

5 Wigmore on Evidence 28, Section 1365 (Chad-

SUR ES een es ee ry vrs ads 7

Wigmore, supra, 154 Section 13896 ................ 7

Wigmore, supra, 185 Section 1398 ................ 7

ae ae MO Be is ds re 2

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO.

STATE OF OHIO,

Petitioner,

VS.

RICARDO SMITH,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

OPINIONS BELOW

The June 13th, 1979 opinion of the Ohio Supreme

Court for which a Motion for Rehearing was denied on

September 13th, 1979 (Appendix “A’’) is set forth in

Appendix “B” of our brief. The opinion of the Court

of Appeals of the First Appellate District of Ohio is set

forth in Appendix “C”.

JURISDICTION

On September 13th, 1979 the Supreme Court of Ohio

denied a Motion for Rehearing of their opinion of June

13th, 1979 which held that where a witness has testified at

a preliminary hearing against a defendant and has been

2

cross examined by the defendant’s counsel at the prelimin-

ary hearing, such testimony may not be used in the subse-

quent trial of the defendant if the witness is unavailable

as being in violation of the Sixth Amendment to the Con-

stitution of the United States.

Jurisdiction is pursuant to 28 U.S.C. 1257.

CONSTITUTIONAL AND STATUTORY AND OHIO

SUPREME COURT RULES 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 previously ascer-

tained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses

against him; to have compuisory process for obtaining wit-

nesses in his favor; and to have the Assistance of Counsel

for his defense.

SECTION 2945.49, OHIO REVISED CODE

Testimony taken at an examination or a preliminary

hearing at which the defendant is present, or 2: 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 rea-

son 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 ex-

ceptions, or authenticated transcript of such testimony, it

shall be proven by the bill of exceptions, or transcript,

otherwise by other testimony.

RULE IX, SECTION 2, OHIO SUPREME COURT

RULES OF PRACTICE

Ten days after the announcement of a decision on the

merits, unless a motion for a rehearing is filed, the Clerk

shall issue a mandate in conformity to the entry of the

Court. Ifa motion for a rehearing is filed and denied, the

mandate shall issue at the same time as the decision on

the motion for rehearing. No mandate shall issue on a

denial of a motion to certify or a motion for leave to appeal,

or upon the sustaining of a motion to dismiss an appeal as

one not involving a substantial constitutional question.

QUESTION PRESENTED

Where a witness who is not available for trial and cannot

be located has testified at a preliminary hearing at which

the defendant was present and was represented by counsel

at that preliminary hearing and where the right of full

confrontation was available, although the witness was not

fully cross examined, does the confrontation clause of the

Sixth Amendment to the United States Constitution bar the

use of said witness’s recorded testimony?

STATEMENT OF THE CASE

The defendant was arrested on September 5th, 1976 for

the crime of rape. He had a preliminary hearing on Sep-

tember 10th, 1976 at which time he was represented by

legal counsel and was given the full opportunity of cross

examination at said preliminary hearing. At that hearing

the prosecuting witness testified and was cross examined by

counsel for the defendant. The defendant was subsequent-

ly indicted by the Grand Jury for the crime of rape. The

trial commenced on December 3rd, 1976 before a jury.

The victim and prosecuting witness’s whereabouts as of the

date of the trial was unknown and she could not be located

at that time. Under the provisions of Ohio Revised Code

2945.49 her previous testimony at the preliminary hearing

was offered and accepted by the Court as evidence against

the defendant. Prior to the acceptance of said evidence

the prosecutor gave a statement to the Court to reflect that

the witness’s whereabouts were unknown and to show that

an effort had been made to locate the said witness and

to bring her before the Court to testify against the de-

fendant. The defendant was sentenced on January 3\st,

1977 to a term of not less than 4 years nor more than 25

years to the Ohio Reformatory as provided under the Ohio

Statutory law.

A timely appeal was filed to the Court of Appeals of

the First Appellate District who rendered their decision

on February 8th, 1978 affirming the conviction of the de-

fendant.

The Supreme Court of Ohio on June 13th, 1979

by a 4 to 3 decision (one judge on the majority was sitting

by designation as the regular judge was not available)

reversed and remanded the case on the basis that (1) the

prosecutor had not properly qualified the introduction of

5

said testimony; and, (2) the defendant’s rights under the

Sixth, Amendment to the United States Constitution were

violated by the introduction of testimony of the prosecuting

witness which was the record of her testimony at the de-

fendant’s preliminary hearing at which time the defendant

was represented by legal counsel and afforded the full op-

portunity of cross examination of the said witness. A Mo-

tion to Reconsider (which motion delayed the effective

date of the opinion and decision) was timely filed and the

Ohio Supreme Court overruled that motion on Septem-

ber 13th, 1979. This Petition for Certiorari to the Supreme

Court of Ohio was from that decision.

REASONS FOR GRANTING PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES

SUPREME COURT

The Supreme Court of Ohio reversed and remanded the

case on two basis which were:

(1) The oral statements of the Prosecuting Attorney

to the Court as to why the witness was not avail-

able was insufficient even though not objected to

by defense counsel and the requirements of Ohio

Revised Code 2945.49 mandated the presentation

of evidence from the witness stand under oath.

(2) The testimony of a witness, given at a prior hear-

ing, where the defendant is present and repre-

sented by counsel and has the opportunity for full

cross examination, may not be admitted in a subse-

quent trial against said defendant when said wit-

ness is unavailable and cannot be located as being

in violation of the Sixth Amendment to the United

States Constitution.

6

We submit that we are not disputing the right of the

Supreme Court of Ohio to interpret their statutes and to

require the presentation of evidence under oath from the

witness stand as to the unavailability of the witness.

We are disputing the statement in the mandate which

reaffirms the Ohio Supreme Court’s ruling in State of Ohto

v. Roberts, 55 O.S. (2d) 191 (1978), and for which this

Court granted certiorari uncer case 78-756 of the October

Term, 1978. It is our understanding that briefs have been

filed and the case of State v. Roberts (supra) is currently

awaiting argument before this Court.

Under the provisions of the Ohio Rules of Criminal

Procedure a defendant has the “full right of cross exam-

ination” of witnesses presented against him in the pre-

liminary hearing’ which hearing is a judicial hearing.

The Ohio Rules of Criminal Procedure further mandate

that the evidence presented at the preliminary hearing

shall be “substantial credible evidence’’.?

As can be seen the Ohio Rules of Criminal Procedure

raise the dignity of the preliminary hearing judicial pro-

ceeding to one of almost a full fledged trial at which the

defendant is represented by counsel and has the full op-

portunity of cross examination and any decision by the

Court must be based upon “substantial credible evidence”.

1 Ohio Criminal Rule 5(B) (2)

“At the preliminary hearing . . . the defendant and the judge

have the full right of cross examination . . . . the hearing shall

be conducted under the rules of evidence prevailing in criminal

trials generally.”

2 Ohio Rules of Criminal Procedure Rule 5(B) (5)

“Any finding requiring the accused to stand trial on any charge

shall be based solely on the presence of substantial credible evi-

dence thereof. . .”

7

The meaning of confrontation in its main aspect is

merely another term for cross-examination. The right to

confront a witness is the right to have the opportunity to

cross-examine that witness. Confrontation may as an in-

cidental matter also provide for the observation of the

witness’ demeanor as a minor means of judging the value

of his testimony. This minor advantage is not regarded

as essential and is dispensed with when it is not feasible.

5 Wigmore on Evidence 28, Section 1365 (Chadbourne Ed.

1974).

This minor or secondary advantage is a result which

accidentally became associated with the process of con-

frontation. The basic and fundamental object of confronta-

tion is the right to cross-examination. Wigmore, supra, 154

Section 1396.

It seems to be well established that the former testimony

of an absent witness has almost unanimously been received

into evidence by the Courts in this country where it is

offered against the accused in a criminal proceeding with-

out violating constitutional rights. This has been so held

where the right of cross-examination has been satisfied.

Wigmore, supra, 185 Section 1398.

It appears that demeanor is such a minor incident of the

right of confrontation as not to pose itself as an obstacle

at all. The former testimony given to a jury is admissible

at a later trial even though the witness is not present and

even though his demeanor is not observable at the subse-

quent hearing.

As early as 1895 this Court in the case of Mattox v.

United States, 15 S.Ct. 337 (1895) , dealt with the admissi-

bility of a government witness’ prior recorded testimony at

a second trial where the witness died after the first trial

but before the second. :

8

The court in Mattox, supra, held that the authority

in favor of the admissibility of such prior recorded testi-

mony where given before a committing magistrate or upon

a former trial is overwhelming. The Court also considered

the use of a deceased witness’ testimony given at a pre-

liminary examination and observed that prior cases have

held that the right of cross-examination having once been

exercised it was no burden upon the defendant to permit

the testimony of the deceased witness to be read to the

jury. The court pointed out that consideration must be

given to public policy and the necessities of the case. The

rights of the public should not wholly be sacrificed in

order that ar incidental benefit may be preserved to the

defendant.

The Court in Mattox, supra, went on to state at page

340:

‘, . . A technical adherence to the letter of a consti-

tutional provision may occasionally be carried further

than is necessary to the just protection of the accused,

and further than the safety of the public will warrant.

For instance, there could be nothing more directly

contrary to the letter of the provision in question

than the admission of dying declarations. They are

rarely made in the presence of the accused; they are

made without any opportunity for examination, or

cross-examination, nor is the witness brought face to

face with the jury; yet from time immemorial they

have been treated as competent testimony.”

It cannot be argued that the Constitutional right to con-

frontation requires that no hearsay evidence can ever be

introduced. Dutton v. Evans, 91 S. Ct. 210 (1970). This

type of evidence should be admissible despite the absence

of the witness based upon the theory that the evidence

possesses the indicia of reliability. California v. Green, 90

S.Ct. 1930 (1970) , citing Dutton, supra.

9

The Court in Green, supra, seemed to rely upon the fact

that where testimony is given at a preliminary hearing

it is given under circumstances much the same as surround

a trial. Namely, the witness is under oath, defendant is

present and represented by counsel, the opportunity to

cross-examine is present and the hearing is conducted be-

fore a judicial tribunal.

Rule 804 of the Federal Rules of Evidence much the

same as Ohio’s statute permits the introduction at trial

of a witness’ former testimony where the declarant is un-

available to testify at the time of trial.

The Ninth Circuit Court of Appeals in the case of

Turner v. Craven, 475 F.2d 769 (9th Cir. 1973), held ad-

missible the testimony given by the victim of the crime

at a preliminary hearing where she was subject to cross-

examination and where she was unavailable to testify

at trial because of her mental and physical state.

In the case of /nited States v. Bell, 500 F.2d 1287 (2nd

Cir. 1974), the Court held that the use of prior recorded

testimony at a suppression hearing of an identifying witness

who was not present at trial because of illness was proper

where prior testimony w2s on same issue for which it was

offered at trial. In the first instance it is generally up to

the trial judge to decide if a witness is unavailable. In

citing a long chain of authority the court concluded its

decision by stating: ‘‘the law is clear ihat prior testimony

may be admitted when given — as here— in court, under

oath subject to cross-examination and on the very issue

for which it was offered at trial.”

In the case of United States v. Allen, 409 F.2d 611

(10th Cir. 1969) , the defendant appeared at a preliminary

hearing where the opportunity for cross-examination was

full, complete and unrestricted. Over objection of the

10

defendant the trial Court received into evidence the tran-

script of a co-defendant’s testimony given at the preliminary

hearing. Without this evidence the case against the de-

fendant was insufficient to sustain a conviction. The Court

held:

“The argument is that because of this fundamental dif-

ference the cross-examination of a prosecution witness

at a preliminary hearing is less searching into the

merits and hence does not satisfy the demands of the

confrontation clause. We believe that the test is the

opportunity for full and complete cross-examination

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

constitutional right. To paraphrase Pointer the state-

ments of the witnesses were made ‘at a fullfledged hear-

ing’ with accused present and represented by counsel

who was given a ‘complete and adequate opportunity

to cross-examine.’ ”

In considering the argument that use of the transcripts

does not disclose the demeanor of the witness the court

in Allen, supra, states at page 613:

‘, . . If opportunity to observe demeanor is the con-

trolling factor, then transcripts of testimony at a former

trial may not be received. The demeanor problem

is the same there as it is with the use of transcripts

taken at a preliminary hearing.”

The Court relied upon the case of Mattox v. United

States, 156 U.S. 237, which held that the use of transcripts

taken at a former trial did not present a confrontation or

demeanor problem. Public policy permitted the use of

transcripts. The Court in Allen, supra, concluded its de-

cision by stating: : Si ae,

11

“In the case at bar the right of confrontation has been

satisfied. The defendant and the witnesses were

brought face to face in a judicial proceeding. The wit-

nesses were sworn and the opportunity for cross-ex-

amination was complete and adequate. In our opinion

the transcripts were properly received.”

In regard to the issue of confrontation and demeanor

the Eighth Circuit Court of Appeals in the case of Phillips

v. Wyrick, 558 F.2d 489 (8th Cir. 1977) , held at p. 495:

“Although the confrontation privilege encompasses the

opportunity both for the defendant to cross-examine

a witness and for the jury to observe the witness, the

former is an indispensable ingredient while the latter

is an incidental advantage which must sometimes give

way to considerations of public policy and the necces-

sities of the case. . .”

The Sixth Circuit Court of Appeals in the case of

Harvey v. Kropp, 458 F (2d) 1054 (1972), at page 1507,

relied heavily on the opinion of Mr. Justice White in the

Green case (supra) in which he said at page 1938:

“We also think that Porters preliminary hearing testi-

mony was admissible as far as the Constitution is con-

cerned wholly apart from the question of whether

respondent had an effective opportunity for confronta-

tion at the subsequent trial. For Porters 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 by counsel . . . respondent

had every opportunity to cross examine Porter as to

his statement; and the proceedings were conducted be-

fore a judicial tribunal, equipped to provide a judicial

record of the hearings. Porter’s statement would, we

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

12

absence if Porter had been actually unavailable, de-

spite g>od faith efforts to produce him. (399 US.

163, 165, 90 S. Ct. 1938.) ”

The Sixth Circuit referred to the Michigan Statute,

Mich. Comp. L. Ann. Sec. 768.26 (1968), and Mich. Stat.

Ann. Sec. 28, 1049 (1954) , which is practically on all fours

with Ohio Revised Code, Section 2945.49.

The Sixth Circuit found said testimony given at the

preliminary hearing to be admissible at the subsequent trial

where the statute was in existence at the time the pre-

liminary hearing took place.

13

CONCLUSION

It is the belief of the petitioner that Ohio Revised

Code 2945.49 does not violate the provisions of the Sixth

Amendment to the United States Constitution.

Where a defendant has legal counsel at the time of a

preliminary hearing and has the full opportunity to cross

examine a witness at the preliminary hearing in Ohio,

and, where that witness is unavailable and cannot with

reasonable diligence be located, a prior recorded transcript

of that witness’s testimony at the judicially conducted

preliminary hearing may be used against the defendant.

We believe that this Court should grant certiorari in

this case.

We believe that if this Court does not desire to grant

certiorari in this case at this time; then we believe that

this Court should hold this case in abeyance pending a

decision in the case of State of Ohio v. Herschel Roberts,

#78-756 of the October Term, 1978 which decision will

have a substantial impact upon the ruling by this Court

in this case.

SIMON L. LEIS, JR.

Prosecuting Attorney

LEONARD KIRSCHNER

Assistant Prosecuting Attorney

THOMAS P. LONGANO

Assistant Prosecuting Attorney

JOSEPH G. CARR

Assistant Prosecuting Attorney

420 Hamilton County Court House

Court & Main Streets

Cincinnati, Ohio 45202

Attorneys for Petitioner

APPENDIX A

THE SUPREME COURT OF THE STATE OF OHIO

No. 78-437

THE STATE OF OHIO, ) 1979 TERM

City of Columbus. ) To wit: September 13, 1979

STATE OF OHIO,

Appellee,

vs.

RICARDO SMITH,

Appellant.

REHEARING

(Entered September 14, 1979)

It is ordered by the court that rehearing in this case is

denied.

I, THOMAS L. STARTZMAN, of Clerk the Supreme

Court of the State of Ohio, do hereby certify that the fore-

going entry was correctly copied from the records of said

Court, to wit, from Journal No. __. Page ...

IN WITNESS WHEREOF, I have hereunto sub-

scribed my name and affixed the seal of the Su-

preme Court this 13th day of September, 1979

THOMAS L. STARTZMAN, Clerk.

By /s/ SAM F. ADKINS, Deputy.

la

2a

APPENDIX B

THE STATE OF OnI0, APPELLEE, Vv. SMITH, APPELLANT.

[Cite as State v. Smith (1979) , 58 Ohio St. 2d 344.]

Criminal law—A bsent witness—Admissibility of preliminary

hearing testimony at later trial—R. C. 2945.49 con-

strued.,

(No. 78-437—Decided June 13, 1978.)

APPEAL from the Court of Appeals for Hamilton County.

Ricardo Smith was arrested for rape, at 5:45 a.m. on

September 5, 1976, after being found with Carolyn Coffman

under circumstances indicating that a rape may have taken

place. At a preliminary hearing held in the Hamilton

County Municipal Court on September 10, 1976, Carolyn

Coffman testified and was cross-examined briefly by Smith’s

appointed counsel. At jury trial in the Court of Common

Pleas, the state, over objection of defendant, introduced the

preliminary hearing testimony of Coffman* after stating

* The proceedings at the preliminary hearing were as follows:

“Mr. DiPuccio: Ricardo Smith. Swear in the witnesses.

“(Witnesses sworn. )

“CAROLYN COFFMAN a witness herein, called on behalf of the

plaintiff, having previously been sworn, testified as follows:

“DIRECT EXAMINATION

“BY MR. DiPUCCIO:

“Q. State your name.

“A. Carolyn Coffman.

“Q. On September 5th, 1976, did you see the defendant, Ricardo

Smith?

“A. Yes, I did.

“Q. If you see him in Court today, point to him please, if you can?

3a

that Coffman was unavailable and informally relating un-

successful attempts of the police to locate her.

“A. Right, standing over there (indicating).

“Q. What happened on September the 5th?

“A. Well, I was getting out of my car going up to my apartment

and he came out from some bushes and grabbed me, and he started

pulling on me and pulling me down. He pulled me down behind this

school and forced me to do some awful things to him.

“Q. Okay. Tell us what occurred behind the school? You'll have

to tell us exactly what happened.

“The Court: I know it’s embarrassing, ma’am, but you do have to

relate the facts.

“A. He made me stick—put my mouth on his penis and then he

got on top of me and stuck his penis in my vagina.

“Mr. DiPuccio: Okay. Your witness.

“CROSS-EXAMINATION

“BY MR. LANDEN:

“Q. Ma’am, what time of the day was this?

“A. It was around 8:30 at night.

“Q. Was there anyone else present at the scene?

“A. No, there wasn't.

“Q. Okay. No other persons were there?

‘A. No.

“Q. Now, did Mr.—did the defendant—was there any use of any

weapon?

“A. Yes, there was.

“Q. What was that?

“A. It was a black looking thing and it was sharp.

“Q. Was it a knife, or was it as a club or what was it?

“A. I don’t know, but I just know it was sharp because he said if

I didn’t do what he said that he would cut my throat.

“Q. Okay. Did you make any screams.

“A. Yes, I did.

“Q. And how far—where were you in relation to the apartment

when you first saw the gentleman?

“A. I was getting out of my car.

. How far—was this apartment right next to the street?

“A. It was right behind my house in the parking lot.

. Do you live in an apartment or is it—

“A. Yeah, I was living there.

. Okay. Had you ever seen this gentleman before?

“A. No, I haven't.

“Mr. Landen: I have no further questions.

“Mr. DiPuccio: Thank you, ma’am, you may step down. Okay,

Officers.”

“(End of the testimony.)”

4a

Smith denied that he had raped Coffman, but testified

that Coffman picked him up at a White Castle restaurant

earlier in the evening and that she had initiated and con-

sented to their later sexual activities. Smith’s testimony

was in part corroborated by a former security agent at a

White Castle restaurant who testified he had seen Coffman

and Smith amicably leave the restaurant in her car prior

to the alleged rape.

The state introduced police and medical testimony of

Coffman’s physical condition when found with defendant,

all of which tended to indicate that it was highly unlikely

that the sexual conduct was voluntary.

Defendant was found guilty as charged and sentenced

to a term of years. Upon appeal, the Court of Appeals

affirmed.

The cause is now before this court pursuant to the al-

lowance of a motion for leave to appeal.

Mr. Simon L. Leis, Jr., prosecuting attorney, Mr. Leon-

ard Kirschner, Mr. Thomas P. Longano and Mr. Joseph G.

Carr, for appellee.

Mr. Robert L. Gensler, for appellant.

Per Curiam. Appellant raises two objections to the use

of the preliminary hearing testimony of Coffman: (1) the

testimony is precluded by the confrontation clause of the

Sixth Amendment to the United States Constitution; and

(2) the testimony is not admissible because the witness was

not proved to be unavailable to testify at the trial.

We have recently held in State v. Roberts (1978), 55

Ohio St. 2d 191, that the testimony under oath of a ma-

terial witness at the preliminary hearing may not be used

against a defendant at the trial where there was no cross-

examination at the preliminary hearing, despite the fact

_ that the witness is proved to be unavailable to testify at

the trial. The use of such testimony was held to violate the

5a

Sixth Amendment to the United States Constitution.

Roberts left open the question of whether the preliminary

hearing testimony of an unavailable witness is precluded

by the Sixth Amendment when counsel for defendant

cross-examines the witness at the preliminary hearing.

Citing California v. Green (1970), 399 U.S. 149, the

writer intimated that adequate cross-examination may satis-

fy the confrontation clause of the Sixth Amendment and

make the testimony admissible at a later trial.

The principle set forth by the court in Roberts is fully

applicable to this cause. At all events, the cross-examina-

tion by assigned counsel at the preliminary hearing five

days after the arrest was of no more value than no cross-

examination at all. There was no meaningful cross-exam-

ination of Coffman concerning where she first met defen-

dant or of the particulars surrounding consent or lack

thereof. As Chief Justice O’Neill stated in Roberts, the

issue at the preliminary hearing differs greatly from that

at trial. Counsel has little, if any, opportunity to effective-

ly cross-examine a witness about the details that tend to

indicate whether the witness is telling the truth. It would

make little sense to hold that brief, unprepared cross-

examination at the preliminary hearing meets Sixth

Amendment standards while the total lack of cross-exam-

ination does not. One consequence of such distinction

would be that defense counsel would be forced to either

waive cross-examination entirely at the preliminary hearing

or to insist upon an opportunity to cross-examine at great

length.

Thus, the Roberts’ rule includes preclusion of an un-

available witness’ testimony at the preliminary hearing

where the record shows that the witness was cross-examined

only briefly and ineffectively.

The state also failed to establish that Coffman was un-

available to testify at trial. Prior to the commencement of

6a

the trial on December 3, 1976, defense counsel specifically

raised the question of the availability of the prosecuting

witness to testify, being concerned with the possibility of

the use of the witness’ recorded testimony pursuant to R.

C. 2945.49. He pointed out that the trial was originally

set for November 29, and continued until December 3, for

the reason that the prosecuting witness was not present on

November 29, 1976. (That fact is not otherwise estab-

lished in the :ecord.) The court requested the prosecutor

to clarify the situation. The prosecutor stated that a sub-

poena had been issued for Coffman for November 29, and

that she did not show up. He said that he had had “Cin-

cinnati police officers * * * and other individuals looking

for her,”’ that they had gone to her address, and that she

did not live at the address where she said she lived during

grand jury testimony, or at her prior address. He said

further that they had been unable to locate her; he argued

that the state could use her testimony if she was unavailable

for any reason, concluding that “I don’t know why this girl

is not here today, but it could be for a good reason as

equally as it could be for a bad one.” After further argu-

ment by defendant concerning the fact that a subpoena was

not issued to compel Coffman’s presence on December 3,

the trial court concluded that it was satisfied that the prose-

cutor had made an effort to have her at trial and that she

was unavailable within the purview of R. C. 2945.49.

There was no sworn testimony as to efforts made by the

state to secure her presence at the trial and obviously the

prosecutor was relying primarily on hearsay information

concerning attempts to find her, the prosecutor not having

conducted the search personally.

The Court of Appeals held in effect that the defendant

waived any right to have the state establish the unavailabil-

ity of the witness by proper testimony, rather than hear-

say statements not under oath by the prosecutor, by failure

7a

to specifically request that the prosecutor’s statements be

substantiated by witnesses under oath subject to cross-

examination.

The right to cross-examine and confront a key prose-

cution witness at trial is an important constitutional right

that is subject to express rather than implied waiver. To

show unavailability, the state has the burden of proving

that by diligence the witness’ attendance could not have

been procured. See State v. Roberts, supra, at page 195.

The evidence produced by the state must be based on the

personal knowledge of witnesses rather than upon hearsay

not under oath, at least when unavailability has not been

clearly conceded by defendant. The record does not show

that defense counsel ever agreed that the state had shown

that the witness was unavailable or that the state was

diligent in attempting to locate her. In fact, the conclud-

ing remark of the prosecutor indicates that her reason for

not attending the trial may have been “‘a bad one.” Use of

Coffman’s preliminary hearing testimony in lieu of her

attendance, confrontation, and cross-examination at trial

was improper as her credibility, as yet not properly tested

in the adversary system, was so crucial to the outcome. If

her absence was for an improper reason, a real injustice

may have occurred by use of the preliminary hearing

testimony.

The state failed to prove that the prosecuting witness

was unavailable and could not be produced at trial by

diligent effort; thus, the state did not lay a proper founda-

tion for using her preliminary hearing testimony pursuant

to R. C. 2945.49.

Although the state produced sufficient evidence without

Coffman’s testimony to find defendant guilty of rape beyond

a reasonable doubt, the error in admitting the preliminary

hearing testimony of Coffman is not harmless. The bene-

8a

ficiary of a federal constitutional error must prove beyond

a reasonable doubt that the error complained of did not

contribute to the verdict obtained in order for the error to

be harmless. Chapman v. California (1967) , 386 U.S. 18.

Harmless error has not been shown beyond a reasonable

doubt in this cause, as the testimony of the absent witness

was quite important to the state upon the crucial issue of

consent.

The judgment of the Court of Appeals is reversed and

the cause is remanded for a new trial consistent with this

decision.

Judgment reversed and cause remanded.

W. Brown, P. Brown, SWEENEY and McCormac, J]J.,

concur.

CELEBREZZE, C. J., HERBERT and HoLMEs, JJ., dissent

for the reasons stated in the dissenting opinion of CELE-

BREZZE, J., in State v. Roberts (1978), 55 Ohio St. 2d 191,

199.

McCormac, J., of the Tenth Appellate District sitting

for LOCHER, J.

9a

APPENDIX C

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

NO. C-77095

STATE OF OHIO,

Plaintiff-Appellee,

vs.

RICARDO SMITH,

Defendant-Appellant.

MEMORANDUM DECISION

AND

JUDGMENT ENTRY

(Filed February 8, 1978)

Messrs. Simon L. Leis, Jr., Thomas P. Longano and Joseph

G. Carr, 420 Hamilton County Court House, Court and

Main Streets, Cincinnati, Ohio 45202, for Plaintiff-Appel-

lee,

Mr. Robert L. Gensler, 711 Gwynne Building, Cincinnati,

Ohio 45202, for Defendant-Appellant.

10a

PER CURIAM.

This cause came on to be heard upon the appeal, the

transcript of the docket, journal entries and original papers

from the Court of Common Pleas of Hamilton County,

Ohio, the transcript of the proceedings, the briefs and

the arguments of counsel.

Now, therefore, the assignments of error having been

fully considered are accordingly passed upon in conformity

with App. R. 12 (A) as follows:

The defendant-appellant was charged with and, follow-

ing a jury trial, was convicted of rape contrary to R. C.

2907.02, and was thereafter sentenced as appears of record.

This appeal was timely brought, presenting two assign-

ments of error for review.

The defendant, in his first assignment, asserts that the

trial court erred in admitting into evidence the recorded

testimony of the prosecuting witness, taken at the defen-

dant’s preliminary hearing, without first requiring the state

to demonstrate that it had made a good faith effort to ob-

tain the witness’ presence at trial. We disagree. R. C.

2945.49 provides, in pertinent part, that:

Testimony taken at an examination or preliminary

hearing at which the defendant is present . . . may

be used whenever the witness giving such testimony

dies, or cannot for any reason be produced at the trial.

In the instant case, the trial court permitted the introduc-

tion of the complaining witness’ recorded testimony into

evidence after having been informed by the prosecutor

that repeated efforts to locate and compel the appearance

of the witness by various Cincinnati law enforcement off-

cers had proved fruitless. Counsel for the defendant, while

voicing a general objection to the introduction of the

recorded testimony, made no attempt to controvert the

lla

truth of the prosecutor's representations, and asserted no

demand for an evidentiary hearing wherein the state would

have been required to substantiate, by the sworn testimony

of the officers in question, its claim that the witness was

unavailable for trial. Thus, we are not confronted with,

and we do not decide, the case where defendant’s counsel

interposes an objection to a prosecutor’s bald recital of

facts intended to justify the introduction of recorded testi-

mony pursuant to R. C. 2945.49, and demands proof of

such facts in an evidentiary proceeding. In the case before

us, the unchallenged statements of the prosecutor afforded

the trial court a sufficient basis for its determination that

the complaining witness was unavailable for trial within

the meaning of R. C. 2945.49, and that her recorded testi-

mony was, therefore, admissible against the defendant. See

State v. Gaines (Ist Dist. 1974), 40 Ohio App. 2d 224.

The first assignment of error is accordingly overruled.

The defendant’s second assignment of error claims that

the trial court erred in denying his motion for acquittal

made at the close of the state’s case pursuant to Crim. R.

29(A). However, the record reflects that after the trial

court overruled the defendsnt’s motion, the defendant

elected to proceed with the trial and to offer evidence on

his behalf, thus waiving any error which might have at-

tended the trial court’s overruling of the motion for acquit-

tal. See State v. Wilson, No. C-76131 (1st Dist. March 2,

1977) ; State v. Durham, No. C-74614 (lst Dist. April 12,

1976). The second assignment of error is overruled.

All assignments of error properly before this Court hav-

ing been ruled upon as heretofore set forth, it is the Order

of this Court that the judgment or final order herein ap-

pealed from be, and the same hereby is, affirmed.

It is further Ordered that a mandate be sent to the Court

of Common Pleas of Hamilton County, Ohio, for execution

upon this judgment.

12a

Costs to be taxed in compliance with Rule 24, Appellate

Rules.

And the Court being of the opinion that there were

reasonable grounds for this appeal, allows no penalty.

It is further Ordered that a certified copy of this Memo-

randum Decision and Judgment shall constitute the man-

date pursuant to App. R. 27.

To all of which the appellant, by his counsel, excepts.

PALMER, P. J., BETTMAN and CASTLE, J. J.