Crawford v. State

Menchine, J., delivered the opinion of the Court. Cheryl Marie Adams was observed by a passing motorist on Route 40 “walking down on the side of the road with blood all over the side of her face, actually all over her face.” Police were called and she was taken to the Washington County Hospital. She had sustained two gunshot wounds of the head. The wounds produced blindness of the right eye.

The position of the bullets within the skull was such as to inhibit their removal. A jury in the Circuit Court for Washington County, convicted John Thomas Crawford of assault with intent to murder her. He was sentenced to imprisonment for thirty years. In his appeal to this Court appellant contends: 1.

That testimony given by Cheryl Marie Adams at a preliminary hearing in the District Court of Maryland for Washington County was erroneously admitted in evidence at the jury trial in the Circuit Court; and 2. That his motion for revision of verdict was erroneously denied. 1. Admission of Testimony Taken at Preliminary Hearing The rule seems universal that testimony taken at a former trial may be admitted in evidence at a second trial in appropriate circumstances as an exception to the general rule proscribing hearsay evidence, when the witness is no longer available. The text writers seem to make no distinction between a former trial and a preliminary hearing.

In McCormick, Evidence, Ch. 25 § 258 at 622 (2nd Ed. HB 1972), it is said: “If the accepted requirements of the administration of the oath, adequate opportunity to cross-examine on substantially the same issue, and ³ present unavailability of the witness, are satisfied then the character of the tribunal and the form of the proceedings are immaterial, and the former testimony should be received. Accordingly, when these conditions are met, testimony taken before arbitrators, or before a committing magistrate at a preliminary hearing, or in a sworn examination before the Comptroller by the Corporation Counsel of a person asserting a claim against a city, or at a driver’s license revocation hearing, or at a broker’s license revocation hearing, has been held admissible.” In 2 Jones on Evidence, § 9:22 at 229-230 (6th Ed. 1972), it is said: “Testimony which has been given by a witness in a former action or at a former stage of the same action, where it meets certain conditions as hereinafter mentioned, is admissible in a subsequent proceedings, under an exception to the hearsay rule.” In 3 Wharton’s Criminal Evidence, § 650 at 371-375 (13th Ed. Torcía 1973), it is said: “As an exception to the hearsay evidence rule, the testimony of a witness at a preliminary hearing or former trial may be allowed in evidence at a subsequent trial if a proper foundation has been laid, including a showing that the witness is no longer ‘available’. Whether a proper foundation has been laid is a question for the trial judge in his discretion to resolve, and his ruling will not be disturbed unless there has been a clear abuse of such discretion. This use of a former witness’ testimony is not violative of the accused’s constitutional right ‘to be confronted with the witnesses against him’ if, at the preliminary hearing or former trial, the accused had been accorded an adequate opportunity to cross-examine ⁴ such witness.

As in the case of any testimony, the weight to be accorded reproduced testimony is for the jury to determine.” In Annot., 159 A.L.R. 1240 (1945), it is said at 1242: “The rule stated in the previous annotations on this subject that the reproduction of testimony taken in the presence of the accused at a former trial or preliminary hearing, at a later trial when the presence of the witness cannot be secured, does not contravene the right of the accused guaranteed him by the state constitution to be confronted with the witnesses against him, has been affirmed . ..” Early appellate decisions clearly support the text writers’ view that testimony at preliminary hearing, in appropriate circumstances, may be received in evidence at the later trial. See, e.g., State v. Gaetano, 96 Conn. 306 , 114 A. 82 (1921); State v. Stewart, 85 Kan. 404 , 116 P. 489 (1911); Warren v. State, 6 Okla. Crim. 1 , 115 P. 812 (1911); Commonwealth v. Ryhal, 274 Pa. 401 , 118 A. 358 (1922); and Porch v. State, 51 Tex. Crim. 7 , 99 S. W. 1122 (1907).

The precise question before us is one of first impression in this State, although the Maryland position generally on admissibility of prior testimony was thus clearly and succinctly stated by Judge Henderson (now retired) for the Court of Appeals in Contee v. State, 229 Md. 486, 491 , 184 A. 2d 823, 825-826 (1962): “It is well settled that testimony taken at a former trial may be admitted, if it be shown that the witness is dead, insane, or beyond the jurisdiction of the court, or on diligent inquiry cannot be located, or that some other circumstance exists which shows that the witness who gave the testimony at the former trial cannot be procured as a witness at the second trial. This general rule was stated in Hendrix v. State, 200 Md. 380, 387 , and in somewhat different form in Bryant v. State, 207 Md. 565, 587 . See also Marshall v. Haney, 9 Gill. ⁵ 251, 257; Rogers v. Raborg, 2 G. & J. 54, 60 ; Bowie v. O’Neale, 5 H. & J. 226, 234 . For a discussion of the principles involved and the authorities elsewhere, see 5 Wigmore, Evidence (3rd ed.) § 1406 et seq.; 2 Jones, Evidence (5th ed.) § 313; 2 Wharton, Criminal Evidence (12th ed.) § 479; Notes 15 A.L.R. 495 ; 79 A.L.R. 1392 ; 122 A.L.R. 425 ; 159 A.L.R. 1240 .

The writers and authorities all agree that where there was an opportunity to cross-examine the witness in the former trial, there is no violation of the right to be confronted with the witnesses against the accused, under Art. 21 of the Maryland Declaration of Rights or under the Due Process clause of the Fourteenth Amendment to the Federal Constitution. Since there is no constitutional right involved, there has been a discernible tendency, we think, to liberalize the rule, which was first applied ex necessitate in case of death.” Appellant, however, urges that recent decisions of the Supreme Court destroy the continued viability of the rule insofar as testimony given at a preliminary hearing is concerned. He cites Pointer v. Texas, 380 U. S. 400 , 85 S. Ct. 1065 , 13 L.Ed.2d 923 (1965), and Barber v. Page, 390 U. S. 719 , 88 S. Ct. 1318 , 20 L.Ed.2d 255 (1968), as supportive of that contention. We think that neither Pointer nor Barber paints with so broad a brush.

In Pointer, supra, the Supreme Court did indeed reverse the judgment of a State court wherein a transcript of testimony given at a preliminary hearing had been admitted and announced its holding in the following words: “We hold today that the Sixth Amendment’s right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment.” 380 U. S. at 403 , 85 S. Ct. at 1068 , 13 L.Ed.2d at 926 . The Supreme Court explained, however, that its decision ⁶ stemmed from the circumstance that opportunity for cross-examination had not existed at such preliminary hearing: “Under this Court’s prior decisions, the Sixth Amendment’s guarantee of confrontation and cross-examination was unquestionably denied petitioner in this case. As has been pointed out, a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him. See, e.g., Dowdell v. United States, 221 U. S. 325, 330 ; Motes v. United States, 178 U. S. 458, 474 ; Kirby v. United States, 174 U. S. 47, 55-56 ; Mattox v. United States, 156 U. S. 237, 242-243 .

Cf. Hopt v. Utah, 110 U. S. 574, 581 ; Queen v. Hepburn, 7 Cranch 290, 295 . This Court has recognized the admissibility against an accused of dying declarations, Mattox v. United States, 146 U. S. 140, 151 , and of testimony of a deceased witness who has testified at a former trial, Mattox v. United States, 156 U. S. 237, 240-244 . See also Dowdell v. United States, supra, 221 U. S., at 330 ; Kirby v. United States, supra,. 174 U. S., at 61 .

Nothing we hold here is to the contrary. The case before us would be quite a different one had Phillips’ 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. Compare Motes v. United States, supra, 178 U. S., at 474 . There are other analogous situations which might not fall within the scope of the constitutional rule requiring confrontation of witnesses.

The case before us, however, does not present any situation like those mentioned above or others analogous to them. Because the transcript of Phillips’ statement offered against petitioner at his trial had not been taken at a time and under circumstances affording petitioner through counsel an adequate opportunity ⁷ to cross-examine Phillips, its introduction in a federal court in a criminal case against Pointer would have amounted to denial of the privilege of confrontation, guaranteed by the Sixth Amendment. Since we hold that the right of an accused to be confronted with the witnesses against him must be determined by the same standards whether the right is denied in a federal or state proceeding, it follows that use of the transcript to convict petitioner denied him a constitutional right, and that his conviction must be reversed.” 380 U. S. at 406 , et seq., 85 S. Ct. at 1069 , et seq., 13 L.Ed.2d at 928 , et seq. We think the decision of the Supreme Court in Barber v. Page, supra, was grounded upon lack of a good faith effort to obtain the presence of the witness.

The Supreme Court declared: “It is true that there has traditionally been an exception to the confrontation requirement where a witness 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 necessity 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.” 390 U. S. at 722 , 88 S. Ct. at 1320 , 20 L.Ed.2d at 258 . The Court went on to say: “In this case the state authorities made no effort to avail themselves of either of the above alternative means of seeking to secure Woods’ presence at petitioner’s trial.

The Court of Appeals majority appears to ⁸ have reasoned that because the State would have had to request an exercise of discretion on the part of federal authorities, it was under no obligation to make any such request. Yet as Judge Aldrich, sitting by designation, pointed out in dissent below, ‘the possibility of a refusal is not the equivalent of asking and receiving a rebuff.’ 381 F. 2d, at 481. 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.” 390 U. S. at 724-725 , 88 S. Ct. at 1322 , 20 L.Ed.2d at 260 . It is true that the Supreme Court added: “Moreover, we would reach the same result on the facts of this, case had petitioner’s counsel actually cross-examined Woods at the preliminary hearing. See Motes v. United States, 178 U. S. 458 (1900). The right to confrontation is basically a trial right.

It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial. 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.” 390 U. S. at 725-726 , 88 S. Ct. at 1322 , 20 L.Ed.2d at 260 . ⁹ It is the language used in the last above quoted paragraph of the Supreme Court’s decision in Barber, supra, upon which the appellant relies in the subject case for his contention that testimony at a preliminary hearing is, ipso facto, inadmissible in the subsequent trial. We do not read that language as establishing a per se exclusionary rule.

We think that the Supreme Court itself has rejected the thought that its decisions in Pointer and Barber , both supra, should be so broadly applied. In the later case of California v. Green, 399 U. S. 149 , 90 S. Ct. 1930 , 26 L.Ed.2d 489 (1970), the Supreme Court said: “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 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 absence if Porter had been actually unavailable, despite good-faith efforts of the State to produce him. That being the case, we do not