Summary
The Supreme Court of California held that an appellate court must independently review, rather than review for abuse of discretion, a trial court’s determination whether the prosecution exercised reasonable diligence to locate an unavailable witness. The issue arose from the admission of a witness’s preliminary hearing testimony under the former-testimony exception to the hearsay rule and the confrontation clauses. The court affirmed the Court of Appeal’s judgment reversing the defendant’s conviction on one robbery count.
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Practice areas
Questions Presented
- What standard of appellate review applies to a trial court's determination that the prosecution exercised reasonable or due diligence to locate an unavailable witness for purposes of admitting former testimony?
- Whether the prosecution's efforts to locate Culpepper satisfied California's reasonable-diligence requirement for admission of her preliminary-hearing testimony.
Holdings
- An appellate court must independently and de novo review a trial court's determination that the prosecution's failed efforts to locate an absent witness were sufficiently diligent to justify admitting the witness's prior testimony notwithstanding the defendant's confrontation right.
- The prosecution did not exercise reasonable diligence to locate Culpepper, so her preliminary-hearing testimony was not admissible under the former-testimony exception to the hearsay rule.
Key quotations
“Accordingly, we conclude that appellate courts should independently review a trial court's determination that the prosecution's failed efforts to locate an absent witness are sufficient to justify an exception to the defendant's constitutionally guaranteed right of confrontation at trial.” (30)
“The prosecution failed to exercise reasonable diligence to secure Culpepper's attendance at defendant's trial.” (33)
Factual background
Culpepper, the alleged victim of the third robbery count, testified at Cromer's preliminary hearing but disappeared from her neighborhood about two weeks later. Although trial was originally scheduled for September 1997 and was repeatedly continued, the prosecution made no serious effort to locate her until December 1997. Investigators failed to timely pursue information that Culpepper might be living with her mother, did not return to the mother's residence, and did not pursue other available means of contacting her. The trial court nevertheless found reasonable diligence and admitted Culpepper's preliminary-hearing testimony, which was the only evidence supporting the third count.
Procedural history
A jury convicted Cromer of three counts of second degree robbery with personal use of a handgun, and the trial court imposed a 23-year sentence. After the prosecution introduced the absent witness's preliminary-hearing testimony under the former-testimony hearsay exception, Cromer challenged the admission on appeal. The Court of Appeal independently reviewed the diligence determination, reversed the conviction on the third count, and the Supreme Court affirmed.