Opinion
No. 53569-2-I
Filed: March 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-08216-1. Judgment or order under review. Date filed: 11/25/2003. Judge signing: Hon. Robert H. Alsdorf.
Counsel for Appellant(s), Eric Broman, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Dana M. Lind, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Jason M. Manuel (Appearing Pro Se), Doc# 778104, Crowley Correctional Center, 6564 State Hwy 96, Olney Springs, CO 81062.
Counsel for Respondent(s), Dana Cashman, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Jason Manuel appeals his conviction of second degree rape, contending that the trial court violated his constitutional right to confront and cross-examine a witness by admitting testimony from a prior trial despite the State's failure to establish the unavailability of the witness. Because the State made reasonable efforts to obtain the witness's presence for the second trial by letter and subpoena before discovering that she had left the country shortly before trial began, it was not required to attempt extradition from Italy or personal service in Italy by the United States State Department.
FACTS
On the evening of August 30, 2002, and into early hours of the next morning, Jason Manuel attended two different house parties in Seattle's University District. Based on separate incidents involving a different victim at each house, the State charged Manuel with one count of indecent liberties and one count of second degree rape. At trial in May 2003, Mary Enslow, the roommate of the alleged rape victim, testified as a witness for the State. The jury convicted Manuel on the indecent liberties charge, but was unable to reach a verdict on the rape charge.
Originally set for July 28, 2003, the second trial on the rape charge was continued until September 17, 2003. On the first day of trial, the State informed the trial court that Enslow was in Europe for fall quarter and that the State was investigating the possibility of a stipulation by the parties to show a videotape of Enslow's testimony from the first trial, and that the State would provide defense counsel, who had represented Manuel at the first trial, with a copy of the tape. Following jury selection, the trial court heard the State's motion to admit Enslow's videotaped testimony and defense objections on September 25, 2003.
The prosecutor filed an affidavit stating that on or about July 8, 2003, she sent Enslow a letter informing her that the State would call her to testify in the re-trial and that on August 7, 2003, the State sent Enslow a subpoena for trial on September 8, 2003. In speaking to Enslow's brother, the prosecutor learned that Enslow left for Europe on September 3, 2003, and would not return until late November 2003. The prosecutor informed defense counsel by letter that the State would seek to introduce the videotaped testimony at trial and then provided a copy to the defense on September 19, 2003.
Relying on State v. Hobson, 61 Wn. App. 330, 810 P.2d 70 (1991) and State v. DeSantiago, 149 Wn.2d 402, 68 P.3d 1065 (2003) the State argued that the videotaped testimony should be admitted because Enslow was unavailable for trial while studying in Rome and the State had made a good faith effort to obtain her presence by sending her a letter and a subpoena. Manuel objected, arguing that the State's effort to contact Enslow was not clearly adequate. Citing Hobson and State v. Allen, 94 Wn.2d 860, 621 P.2d 143 (1980) (disavowed on other grounds by State v. Vladovic, 99 Wn.2d 413, 662 P.2d 853 (1983)) the trial court determined that Enslow was unavailable and admitted the videotaped testimony. The jury found Manuel guilty. He appeals.
ANALYSIS
The only issue on appeal is whether the admission of Enslow's testimony by way of videotape from the first trial constitutes a violation of Manuel's confrontation clause rights. In order to introduce Enslow's videotaped testimony from the prior trial without violating Manuel's Sixth Amendment confrontation rights, the State had to establish that Enslow was unavailable at the time of trial. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177 (2004); Ohio v. Roberts, 448 U.S. 56, 74-75, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) (witness is not unavailable for Sixth Amendment purposes unless prosecutor, who bears burden of proof, has made a good faith effort to obtain his presence) (overruled on other grounds by Crawford, 124 S. Ct. at 1374). A witness may not be considered unavailable for constitutional purposes `unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.' Barber v. Page, 390 U.S. 719, 724-25, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968); State v. DeSantiago, 149 Wn.2d 402, 411, 68 P.2d 1065 (2003).
Manuel does not argue that the testimony was not obtained subject to meaningful cross-examination, the other requirement for admission. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177 (2004).
Relying on Ohio v. Roberts, Barber v. Page, and State v. DeSantiago, Manuel argues that the State failed to demonstrate that Enslow was unavailable for trial. In particular, Manuel asserts that by failing to attempt to secure Enslow's attendance at the second trial by requesting the United States State Department to consider serving Enslow with a subpoena in Italy under a treaty between the United States and Italy regarding mutual assistance in criminal matters, the State failed to exercise reasonable good faith efforts to obtain her presence at trial.
In Roberts, despite the fact that other options for investigation existed, the State met its obligation by issuing five subpoenas over a period of several months to the witness's last known address and spoke with, and produced for voir dire, her parents who had not heard from her for a year. 448 U.S. at 75.
To be sure, the prosecutor might have tried to locate by telephone the San Francisco social worker with whom Mrs. Isaacs had spoken many months before and might have undertaken other steps in an effort to find Anita. One, in hindsight, may always think of other things. Nevertheless, the great improbability that such efforts would have resulted in locating the witness, and would have led to her production at trial, neutralizes any intimation that a concept of reasonableness required their execution. We accept as a general rule, of course, the proposition that "the possibility of a refusal is not the equivalent of asking and receiving a rebuff." Barber v. Page, 390 U.S., at 724, 88 S. Ct., at 1322, quoting from the dissenting opinion in that case in the Court of Appeals ( 381 F.2d 479, 481 (CA10 1966)). But the service and ineffectiveness of the five subpoenas and the conversation with Anita's mother were far more than mere reluctance to face the possibility of a refusal. It was investigation at the last-known real address, and it was conversation with a parent who was concerned about her daughter's whereabouts.
Roberts, 448 U.S. at 75-76.
In Barber v. Page, the Oklahoma prosecutor made absolutely no effort to obtain the presence at trial of a witness known to be incarcerated in a federal penitentiary in Texas, about 225 miles from the trial court. 390 U.S. at 720, 723. Because a federal statute empowered federal courts to issue appropriate writs at the request of state authorities and federal prison policy supported the procedure, the State failed to meet its good faith obligation, and the witness could not be deemed unavailable for constitutional purposes. Id. at 724-25.
In DeSantiago, the State established the unavailability of three witnesses, where, after mailing subpoenas, the prosecutor received a report from an anonymous family member that the witnesses had moved because they were afraid of the defendants. 149 Wn.2d at 409. The detective assigned to investigate learned from the anonymous family member that the witnesses moved to Mexico and considered moving to Texas, but the detective could not find out where in Mexico they were or obtain contact information for relatives in Texas. Id. Based on this record, our Supreme Court stated, `Because the witnesses were out of the country and could not be located, they were sufficiently unavailable to satisfy the confrontation clause.' Id. at 411-12. The Court rejected defense arguments that either the confrontation clause or ER 804 required personal service of subpoenas rather than mailing, use of the uniform act to obtain witnesses from other states, or all-points bulletins, use of the national crime computer, or surveillance of locations the witnesses might visit. Id. at 412.
In Hobson, relied upon by the trial court and the State, this court observed that whether the State meets its obligation imposed by the confrontation clause to make a good faith effort is determined according to the particular facts of each case. 61 Wn. App. at 336 (citing State v. Aaron, 49 Wn. App. 735, 740, 745 P.2d 1316 (1987)). Based on the particular circumstances of the Hobson case, where both parties were aware that the witness intended to take a three-week prepaid hunting trip, the witness had been available for three weeks while the trial was continued for various reasons, other witnesses supplied critical testimony, and the defendant's confrontation and cross-examination rights were not infringed by the introduction of the videotaped deposition, this court held that the State was not required to obtain a material witness warrant to secure the witness's presence at trial.
In State v. Allen, 94 Wn.2d 860, 621 P.2d 143 (1980), also cited by the trial court, the witness had received a second lieutenant commission and had been ordered to report for active duty in Oklahoma prior to the date scheduled for trial. 94 Wn.2d at 866. Although the State did not attempt to have the orders changed, our Supreme Court affirmed the trial court's decision that the witness was unavailable, allowing a videotaped deposition for use at trial under CrR 4.6, based on evidence in the record that any delay in reporting for duty would have caused the witness a substantial setback in his Army career. Id. at 866-67.
In Aaron, 49 Wn. App. at 738-39 this court reversed the defendant's conviction based on the trial court's admission of a deposition of a witness who was in England for six months to teach art and history classes, because the State failed to demonstrate unavailability. Rather than send a subpoena, or make any other effort to secure her presence at trial, the State simply scheduled a deposition on the day before the witness was scheduled to leave for England. Id. at 741. Because the State did not meet its obligation by merely obtaining the presence of the witness at a deposition, it was error to admit the deposition. Id.
Here, the State sent a letter to Enslow's last known address in July informing her of the second trial, and sent a subpoena in August requiring her appearance at trial on September 8. Thus, unlike the circumstances in Aaron and Barber v. Page, the State actually took reasonable steps to obtain Enslow's voluntary presence at trial. It was not until after Enslow's departure for Italy on September 3 that the prosecutor learned from Enslow's brother that she was in Italy attending classes as part of her university education. Also, as in Hobson, several other witnesses supplied critical testimony, including the alleged victim of the rape, and there is no contention that Manuel's confrontation or cross-examination rights were otherwise infringed. Thus, based on the particular circumstances of this case, the State met its obligation under the confrontation clause to make a reasonable good faith effort to secure Enslow's presence at trial and was not required to attempt to extradite Enslow from Italy or to personally serve her with a second subpoena in Italy.
Affirmed.
AGID and BAKER, JJ., Concur.