State v. Larson

¶1The defendant, Lemuel James Larson, appeals from a judgment of conviction of the crime of theft of property. We reverse and remand for a new trial.

¶2Larson was originally charged in Steele County through a complaint signed by Larry Goughnour dated the 22nd of June, 1977. The charge was that of theft of property in violation of Sections 12.1-23-021 and 12.1-23-05,2 N.D.C.C.

¶3The preliminary hearing on this complaint was held in County Justice Court of Steele County before the Honorable Arnold H. Johnson on September 2, 1977.

¶4Following the preliminary hearing, Larson was bound over to district court and charged under a criminal information with the same offense. On April 19, 1978, he was arraigned before the district court, at which time Larson pled not guilty and requested a trial by the court. At the time of the arraignment, the court suggested May 22 or May 23 as possible trial dates.

¶5By written motion dated April 28, 1978, the State’s Attorney of Steele County *121sought to secure an order from the district court authorizing the State to use the testimony of witness Goughnour submitted at the preliminary hearing of Larson as substantive evidence at Larson’s trial. He asserted Goughnour was unavailable because he was employed in another state and it was not known where he would be on the date of the trial. On May 10, 1978, a hearing was held on this motion and at that time counsel for Larson argued against the use of the transcript of the preliminary hearing.

¶6At the hearing on the application to use the transcript as substantive evidence, the State’s Attorney informed the district court that he had been informed by the clerk of the court that she had learned from Goughnour’s wife that Goughnour had arrived in Finley “the night before last and he is leaving”.

¶7The State’s Attorney further informed the court that he didn’t know where Goughnour was going, but that he was employed in conjunction with the construction of radar towers or transmission towers and that he would probably be going to New York or Florida. Near the conclusion of the hearing, the district court said:

“Under the circumstances I’ll make the following order: That the transcript of the testimony of Mr. Goughnour may be used only in the event that if, on the date of trial, he is unavailable as a witness and that the State would be directed to have a summons prepared forthwith, summons prepared for service on the date the trial. And the reason that the Court does not wish to and does not feel in the exercise of its discretion that we should subpoena him as a material witness now and detain him 14 days due to the nature of the witness’ work at distances, that it would unduly jeopardize his employment to require his retention in the state for a period of two weeks between now and the time of the trial.

“The defendant’s counsel has indicated a desire to have the Court view the witness in giving of his testimony at deposition or the one that could be made or the one that has been made might not be satisfactory. The defendant may depose the witness between now and the trial if he wishes to set up a notice of deposition and can arrange for the same between now and the trial, but it would be necessary to have a transcript available as well between that time.

“So the order is that the transcript may not be used unless Mr. Goughnour is not available at Finley on the 24th. If he is available on the 24th it may not be used and the Court will not order him detained as a material witness due to the nature of his employment between now and the date of the trial but that the defendant may, if he wishes on notice, depose Mr. Goughnour between now and the time of the trial, keeping in mind it would be necessary to have the transcript available at the time of trial.” 3 [Emphasis added.]

¶8Notwithstanding that counsel for the defendant asserted that he did not think that a subpoena issued and served immediately, requiring Goughnour’s presence in court on May 24th would require the witness to stay within the state in the interim, the court adhered to its previous view and order.

¶9*122When the case was called for trial on the 24th of May, a subpoena directed to Goughnour on that day and attempted to be served on Goughnour on that day was returned on that day without being served upon Goughnour, apparently, because Goughnour was then out of the state. At the trial on that date, the testimony of Goughnour taken at the preliminary hearing was read into the record. Following the close of the trial the court found Larson guilty of the charge of theft of property and sentenced him to serve two years in the State Penitentiary.

¶10On appeal, Larson contends that through the order issued by the district court and the ruling during trial permitting the State to use the transcript of the testimony submitted by witness Goughnour at the preliminary hearing as substantive evidence, he was denied his Sixth Amendment right to be confronted with the witnesses against him.4

¶11He asserts that the Sixth Amendment to the United States Constitution has been made applicable to proceedings in the states by incorporation and application of the Fourteenth Amendment, and he recognizes that in the absence of a statute, a state court cannot require the attendance of a witness who is a non-resident of and is absent from the state.5

¶12To remedy the problem of compelling witnesses to return to a state to testify once they have left the state, he asserts that the National Conference of Commissioners on Uniform State Laws adopted in 1931 the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Cases. 44 A.L.R.2d 732, 733.

¶13North Dakota enacted a version of the Uniform Act in 1933. See S.L.1933, Ch. 217, § 1; § 31-0325 through 31-0331, N.D. R.C.1943, and presently Sections 31-03-25 through 31-03-31, N.D.C.C.

¶14No effort was apparently made to utilize this Act in this case, partly because of the inadequate reimbursement provisions for mileage in Section 31-03-27.

¶15Although it is agreed between the parties here today that the Act is applicable only as between two states which have both enacted it, this limiting factor does not appear to be the reason why the Act was not resorted to in the instant ease.

¶16Larson concedes that traditionally there has been an exception to the confrontation requirement where the witness is unavailable and has given testimony at previous judicial proceedings against the same defendant when that witness was subject to cross examination by that defendant. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). He, however, relies upon Barberin support of his contention that the State made insufficient effort to obtain the presence of Goughnour at the trial:

“In short, a witness is not ‘unavailable’ for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial. The State made no such effort here, and, so far as this record reveals, the sole reason why Woods was not present to testify in person was because the State did not attempt to seek his presence. The right of confrontation may not be dispensed with so lightly.” Barber v. Page, supra, 390 U.S. at 724-25, 88 S.Ct. at 1322, 20 L.Ed.2d at 260.

¶17In Barber, a codefendant gave testimony at the preliminary hearing that incriminated the petitioner. At the time the petitioner was brought to trial, the codefendant was incarcerated in a federal penitentiary in Texarkana, Texas, about 225 miles from *123the trial court in Oklahoma. At the trial, the court allowed the transcript of the code-fendant’s testimony at the preliminary hearing in as evidence over the objection of the petitioner. The jury found the petitioner guilty and upon appeal the Oklahoma Court of Criminal Appeals affirmed the conviction. The petitioner then sought federal habeas corpus, claiming that the use of the transcript of the codefendant’s testimony in his state trial deprived him of his federal constitutional right to confrontation in violation of the Sixth and Fourteenth Amendments. His contention was rejected by the district court and on appeal the Circuit Court of Appeals for the Tenth Circuit, one judge dissenting, affirmed. The United States Supreme Court granted cer-tiorari to consider the petitioner’s denial of confrontation claim and reversed the conviction.

¶18In the instant case, an error resulted from the view that there were only two reasonable alternatives: (1) that the court subpoena Goughnour as a material witness and detain him 14 days for the trial on the 24th, or (2) that a subpoena be issued on the 24th for service upon Goughnour on the 24th to be present for trial on the 24th.

¶19The latter is the course which the court took, apparently believing the first to be too drastic. Actually, at least one other alternative was available. An attempt should have been made on the day the witness was discovered to be present within the court’s jurisdiction to serve the witness with a subpoena requiring him to be present at the trial on the 24th. Such a subpoena would not have detained the witness within the court’s jurisdiction pending the date of the trial. Under the circumstances, we believe that effort was the least effort that should have been made to secure the attendance of the witness on the 24th.

¶20Nothing in State v. Erickson, 241 N.W.2d 854 (N.D.1976), State v. Jacob, 222 N.W.2d 586 (N.D.1974), or in Rule 804(a)(5), N.D.R. Ev., to which we have been referred by the State, requires a contrary result.

¶21State v. McCarty, 49 N.D. 912, 194 N.W. 335 (1923), because of its vintage, having been decided prior to the adoption of the Uniform Act and prior to more recent decisions of this court and of the United States Supreme Court, is unpersuasive.

¶22We accordingly reverse the judgment of the trial court and remand the case for a new trial consistent with the views expressed in this opinion. Should it be contended by the State on remand that Goughnour is still unavailable, it is recommended that evidence on that issue be submitted to the trial court to establish his unavailability, and that proof thereof not rest upon argument of counsel.