Cordovi v. State

ADKINS, Judge. The appellant, Oscar Cordovi, was convicted in the Circuit Court for Montgomery County of second degree rape and second degree sexual offense. On appeal he asserts the following three grounds for reversal of these convictions: 1. The State’s use of the prior recorded testimony of an absent witness violated Cordovi’s constitutional right to confront a witness against him; 2.

The court below should have allowed him to introduce evidence that would have cast doubts on the believability of the absent witness; and 3. Defects in the charging documents deprived the trial court of jurisdiction to try him for second degree rape and second degree sex offense. Factual Background ■ Oscar Cordovi lived with his roommate, Johnny Gutierrez, in an apartment in Silver Spring. On September 19, 1983, the roommates were visited by a woman (the victim).

Ap ⁴⁶¹ parently, she had consensual sexual intercourse with Gutierrez and fell asleep with him on the living room floor. Later that night, she awoke to find Cordovi masturbating over her. When she sat up quickly, Cordovi dressed himself and departed. The victim then attempted to rouse the slumbering Gutierrez to inform him of his roommate’s actions.

Gutierrez did not respond, and the victim left the apartment. As she departed, the victim noticed that Cordovi was following her. When she ignored his pleas for conversation, he seized her arm and commanded that she return to the apartment. As the two re-entered the apartment, they were confronted by Gutierrez.

Now brandishing a knife, Cordovi persuaded Gutierrez to depart. Cordovi then took the victim into his bedroom where she was forced to perform fellatio and vaginal intercourse. After this was over, the appellant prepared coffee for his victim and chivalrously escorted her to her car. I. Confrontation The appellant’s initial contention is that the trial court erred by allowing the State to use the testimony of Johnny Gutierrez that had been recorded at the appellant’s preliminary hearing.

Gutierrez, as the appellant conceded below, was in his native Colombia at the time of trial. It appears that the State became aware of this when a summons it had issued for Gutierrez on February 24, 1984, was returned non est on March 1st (the trial took place on March 14-16). When the summons was returned non est, the State contacted Gutierrez’s family; his brother advised that the witness was in Colombia, but that Gutierrez was aware of the trial date. The State did nothing further to attempt to secure the witness’ attendance.

Both the Sixth Amendment of the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantee an accused the opportunity to confront all ⁴⁶² witnesses who testify against him. 1 These rights exist for two reasons. First, they provide the defendant with an opportunity to challenge the accuracy of the witness’ testimony by “testing the recollection and sifting the conscience of the witness.” Mattox v. United States, 156 U.S. 237, 242-43 , 15 S.Ct. 337, 339-40 , 39 L.Ed. 409 (1895). Second, they compel the witness to appear in open court, before the fact-finder who must appraise the witness’ credibility and demeanor. Id.

In Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), the Court recognized that certain exceptions to the hearsay rules satisfy both of these interests. Id. at 66 , 100 S.Ct. at 2539 . Specifically, in cases involving prior recorded testimony, no violation of the right to confrontation will occur when the State can show that 1) the witness is unavailable, and 2) there is a “particularized guarantee of trustworthiness.” Id.; Moon v. State, 300 Md. 354, 368-69 , 478 A.2d 695 (1984). A. Unavailability The State must not only show unavailability, but it must prove that it made “a good faith effort to obtain [the witness’] presence at trial.” Roberts, 448 U.S. at 74 , 100 S.Ct. at 2543 (emphasis original).

Explaining what was meant by good faith, the Roberts court remarked: The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the witness’ intervening death), “good faith” demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures ⁴⁶³ might produce the declarant, the obligation of good faith may demand their effectuation. “The lengths to which the prosecution must go to produce a witness ... is a question of reasonableness” [citations omitted]. The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness.

As with other evidentiary proponents, the prosecution bears the burden of establishing this predicate. 448 U.S. at 74-75 , 100 S.Ct. at 2543 . When a witness is absent from the State in which trial is to be held, but within the United States, a mere showing that the witness is absent from the trial jurisdiction is insufficient to demonstrate unavailability. In that circumstance, the prosecution must show good faith efforts to procure the witness. Barber v. Page, 390 U.S. 719 , 88 S.Ct. 1318 , 20 L.Ed.2d 255 (1968).

This is so because there are procedures for compelling the presence of such a witness. See, e.g., Md.Cts. & Jud.Pro.Art. §§ 9-301 — 9-306 (1984) (the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings). It is otherwise when the witness is in a foreign nation and beyond the reach of State process. That is the teaching of Mancusi v. Stubbs, 408 U.S. 204, 212 , 92 S.Ct. 2308, 2312 , 33 L.Ed.2d 293 (1972).

There, the Supreme Court, distinguishing Barber , held that unavailability was sufficiently established, without a showing of good faith efforts to obtain the witness, when it appeared that at the trial date the witness was in Sweden and the trial State was “powerless to compel his attendance at the second trial ... through its own process.... ” That is also the effect of our holding in Baldwin v. State, 56 Md.App. 529, 538-39 , 468 A.2d 394 (1983) (“[t]he court’s discretion is not abused in deciding that a witness outside the country is unavailable for trial, thus allowing the introduction into evidence of previously recorded testimony____”). ⁴⁶⁴ The appellant makes much of the State’s failure to explain its efforts to locate Gutierrez on the day of trial. As we have already seen, it was conceded that he was then in Colombia. Clearly, an effort to pinpoint his whereabouts on that date would have been futile and hence unnecessary. Roberts, 448 U.S. at 74 , 100 S.Ct. at 2543 ; see Baldwin, 56 Md.App. at 539 , 468 A.2d 394 .

The appellant next attempts to show that the State acted in bad faith by not taking additional steps to guarantee Gutierrez’s appearance at trial. Initially, we note that the appellant correctly asserts that the State knew that Gutierrez was a foreign national and that he was planning to return to his native country for the Christmas holidays. Furthermore, it is true that defense counsel did notify the State that the witness was apprehensive about becoming involved in the case. Ending his review of the record with these undisputed facts, the appellant concludes that the State was constitutionally bound to prevent Gutierrez from leaving the country.

In other words, he would have us find “bad faith” anytime a prosecutor allows an apprehensive witness to leave the country. There is much in the record, however, to justify the prosecutor’s belief that Gutierrez would be present in court on the day of trial. First, his residency status suggested he would return. His family was living in the Washington, D.C. area, and his immigration status was that of a resident alien.

Also, the record shows that he was employed. Second, Gutierrez had responded once before to a summons and testified against the appellant at a preliminary hearing. This was viewed as very important by the assistant state’s attorney involved in the case. He concluded that Gutierrez was extremely cooperative during the course of that conversation and indicated that he would be more than willing to come back and also during the course of that hearing, I realized during the course of the testimony at the preliminary hearing, it had developed that he had only known this defendant [appellant] for a matter of two ⁴⁶⁵ weeks.

He at that point I felt had no motive or no reason to really want to avoid coming to Court and testifying. It was not like they were close personal friends and he would not want to come to Court and testify against him. He was more than happy to come and testify. He indicated he was going back home, he would be there for a short period of time or for not a really short period of time, but for a vacation and that he would be returning to this country and he would be more than willing to testify.

In addition, at the November 17, 1983 preliminary hearing, the prosecutor informed Gutierrez that trial would “probably be ... 120, 140 - - 100 and some days down the road.” The witness responded “that he would certainly be back over by that date.” After this conversation, the prosecutor “felt very much at ease with [Gutierrez’s] availability.” Perhaps the prosecutor was fooled; perhaps the witness simply changed his mind after he returned to Colombia. Either way, we cannot say that the prosecutor acted in bad faith. At the very least, we cannot say that the court below, having heard the testimony and viewed the demean- or of the prosecutor, erred in finding that the State acted in good faith. 2 B. Particularized Guarantee of Trustworthiness A recognized exception to both the hearsay and confrontation requirements is the use of testimony that was recorded at a previous judicial proceeding. Roberts, 448 U.S. at 65-67 , 100 S.Ct. at 2538-2540 ; Barber v. Page, 390 U.S. 719, 722 , 88 S.Ct. 1318, 1320 , 20 L.Ed.2d 255 (1968). “This exception has been justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purpose sufficiently behind the confrontation requirement.” Barber, 390 U.S. at 722 , 88 S.Ct. at 1320 .

That is, it tests the accuracy and veracity of ⁴⁶⁶ a witness’s testimony. See supra, page 1331. As long as there was an adequate opportunity to cross-examine, testimony given at a preliminary hearing can be admitted without violating the right to confrontation. California v. Green, 399 U.S. 149, 165-68 , 90 S.Ct. 1930, 1938-40 , 26 L.Ed.2d 489 (1970); Crawford v. State, 282 Md. 210, 220-21 , 383 A.2d 1097 (1978).

The thrust of the appellant’s contention is that his counsel was not given an adequate opportunity to cross-examine Gutierrez at the preliminary hearing because the State failed to disclose the contents of the police report and the witness’s statement until a short time before the hearing. Apparently, prehearing counsel did not share this belief. Not only is the hearing record devoid of any protest or motion for continuance, but counsel proceeded to cross-examine Gutierrez on information contained in his statement. The proper forum to raise this argument was the preliminary