EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, October 11, 2012

Service Unavailable Error?: Court Of Appeals Of Ohio Finds Witness Unavailable Under Rule 804(A)(5)

Similar to its federal counterpartOhio Rule of Evidence 804(A)(5) provides that a witness is "unavailable" if he

is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under division (B)(2), (3), or (4) of this rule, the declarant's attendance or testimony) by process or other reasonable means.

I agree with the Court of Appeals of Ohio, Twelfth District in State v. Tabor, 2012 WL 4761741 (Ohio App. 12 Dist. 2012), that a witness in a case that it was reviewing on appeal was "unavailable;" however, I disagree with part of its attempt to distinguish a prior case.

In Tabor, Kenneth Tabor was convicted of domestic violence. After he was convicted, Tabor appealed, claiming that the trial court erred in admitting statements that his wife made during the preliminary hearing pursuant to Ohio Rule of Evidence 804(B)(1), the hearsay exception for former testimony. This hearsay exception was only applicable if the wife was "unavailable" at trial, and the prosecution allegedly proved her unavailability through Ohio Rule of Evidence 804(A)(5). Here were the relevant facts:

A few days before the trial, wife indicated to the prosecution that she did not want to testify against appellant. Although wife was served with a subpoena and told by the prosecutor that she had to honor that subpoena, wife did not appear for trial. The trial was continued....
After the trial was continued, wife was served with notice regarding the new trial date. The victim advocate attempted to contact wife several times by sending her a letter with the new trial dates and by leaving multiple messages on her voicemail. However, wife did not return any of these calls or the correspondence. The week prior to trial, the advocate attempted to call wife again but received a message that she was no longer at that number. After this message, the advocate and the prosecutor went to the apartment complex where wife had been residing.
Upon arriving at wife's last known residence, the advocate and the prosecutor knocked but received no response from anyone in the apartment. However, a neighbor informed them that wife had moved into a different section of the apartment complex. The advocate and prosecutor drove to this new section, got out of their car, and saw wife come out of one of the apartments. The prosecutor moved into the parking lot where wife was able to see him. Wife paused and then proceeded to get into her car and drive away. The advocate and the prosecutor followed wife's car for a length of time and pulled up directly behind her car and honked the horn to get her attention but wife's vehicle sped off.
On February 17, 2011, the prosecution filed a motion to call wife as a court's witness. The motion requested this action because "of th[e] apparent lack of cooperation with the prosecution of this case and in an effort to ascertain the truth of the matter in this case." Subsequently, a bench trial was held on February 22, 2011, where wife failed to appear again. Instead of addressing the state's pending motion, the trial court proceeded to receive evidence as to whether wife was unavailable

The trial court, of course, found that the wife was indeed "unavailable," and the appellate court affirmed that ruling on review. And I think that most people looking at the above facts would similarly conclude that the prosecution was unable to procure the wife's attendance through "process or other reasonable means," making her "unavailable" under Ohio Rule of Evidence 804(A)(5).

The strange part of the court's opinion, though, was its attempt to distinguish State v. Welling, 12th Dist. No. CA85–07–079, 1985 WL 3689 (Nov. 18, 1985), a case cited by Tabor. According to the court, in Welling,

this court has reversed a judgment where an unavailable declarant's preliminary hearing testimony was admitted in trial....In Welling, the prosecution contacted several out-of-state agencies in attempting to find a witness' out-of-state address but failed to follow up with a out-of-state police department in locating the witness....Importantly, the prosecution was not aware of the witness' present location, never spoke with the witness regarding the case, and never served the witness with a subpoena....Although we encouraged the prosecution to more "energetically pursue" leads regarding a witness' location, the trial court's decision was reversed because of the cumulative effect of several errors throughout the course of the trial and not solely because of the admission of the unavailable declarant's testimony.

I'm pretty confused by this last setence. In Welling, the court first found that the trial court erred in finding the subject witness "unavailable" under Ohio Rule of Evidence 804(A)(5) and then found that this and other errors were not harmless because of the cumulative effect of several errors. Therefore, there was error under Ohio Rule of Evidence 804(A)(5) irrespective of an other errors, and if the court found that case analogous with regard to the "unavailability" issue, it should have found error. Whether that error was harmless was another issue.



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Yet another questionable decision by courts Hell-bent on securing domestic violence convictions, the right to confrontation be damned.

Nice concurrence by Judge Piper noting that the prosecutor failed to use all tools necessary to secure the witness's attendance including the state's material witness law. This witness surely could have been brought to court where she might have A) refused to testify on fifth amendment grounds; B) admitted to facts that could have raised a self-defense claim that (rightfully) would have gone unheeded at a preliminary hearing; or C) recanted all or part of her testimony, just to posit a few scenarios that may have swayed the trier of fact when the burden of proof is significantly higher than at a preliminary hearing. All the prosecution needed to do that was have a warrant or stop the witness for the traffic violation she surely committed when her "vehicle sped off." One is left to wonder if the prosecution really wanted this witness to testify or if they believed their chances of a conviction were greater with an unavailable witness.

Of course, a defendant is in the completely untenable position to have to seek his own material witness order and ask the court to lock up the witness who might exonerate him, assuming that the court would ever grant such a request in a domestic violence case. Perhaps, to preserve the record for appeal, defendant's ought to be making those applications.

This case serves as yet another reminder that when defending a criminal case at a preliminary hearing, it is essential to probe deeply and draw objections that will be sustained so that the defendant can argue that the former testimony does not "satisfy the right to confrontation and exhibit indicia of reliability."

Posted by: Joe Heinzmann | Oct 12, 2012 11:31:05 AM

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