United States Court of Appeals,
Fifth Circuit.
No. 95-50223
Summary Calendar.
Karl ECKER, Petitioner-Appellant,
v.
Wayne SCOTT, Director, Texas Department of Criminal Justice,
Institutional Division; Dan Morales, Attorney General,
Respondents-Appellees.
Nov. 21, 1995.
Appeal from the United States District Court for the Western
District of Texas.
Before HIGGINBOTHAM, DUHÉ and EMILIO M. GARZA, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
A Texas jury convicted Karl Ecker of aggravated robbery and
sentenced him to 25 years imprisonment. After exhausting his state
remedies, Ecker filed a petition for habeas corpus relief. See 28
U.S.C. § 2254. The district court adopted a magistrate judge's
recommendation that the application be denied. Ecker appeals.
Before this court, Ecker raises only a Confrontation Clause
challenge to his conviction. We affirm.
I
The magistrate found the following facts, which Ecker does not
dispute. A man approached the cashier of a restaurant, motioned to
a pistol in his belt, and demanded money from the cashier. The
cashier, a Ms. Diltz, moved away, whereupon the man grabbed money
from the register and ran outside to a car. The car, driven by a
second man, drove off. Shortly thereafter, law enforcement
1
officials found a car nearby matching witnesses' descriptions of
the car used in the robbery. A search of the car produced $700
cash and several letters addressed to Ecker. Ecker and a man named
Martinez emerged from a nearby field. Law enforcement officials
arrested them, then brought them back to the restaurant, where
several witnesses identified Martinez as the man with the gun and
Ecker as the driver of the car.1
Ecker's first trial ended in a mistrial, but we do not know
why. At the first trial, Ms. Diltz testified and was
cross-examined by Ecker's counsel. During the second trial, the
prosecution called Ms. Diltz's physician. The physician stated
that Ms. Diltz was receiving treatment for a bone cancer condition
which had resulted in a hip fracture, and that she would be unable
to testify for at least two weeks. The physician also testified
that a greater than 50% chance existed that she would not be able
to testify after three to four weeks. The physician further stated
that if Ms. Diltz were forced to testify immediately, she would
suffer a great deal of pain. On the basis of the physician's
evidence, the court allowed the prosecution to read Mr. Diltz's
testimony from the first trial into the record of the second.2
Ecker argues that the state court's admission of Diltz's previous
1
Ecker challenged the constitutionality of this
identification procedure below, pointing out that at least one
witness subsequently misidentified Martinez at the trial, and
that the identifications of some of the other witnesses were
suspect. Ecker has abandoned this challenge on appeal.
2
Apparently, Ecker did not object to the introduction of
this evidence during the trial. The state makes no argument to
this court based on Ecker's failure to object.
2
testimony violated his rights under the Confrontation Clause.
II
The Confrontation Clause expresses a preference for live
testimony, which allows the jury to observe the witness's demeanor
and the opposing counsel to cross examine the witness. See
California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 1934, 26
L.Ed.2d 489 (1970). "There are few subjects, perhaps, upon which
this Court and other courts have been more nearly unanimous than in
their expressions of belief that the right of confrontation and
cross-examination is an essential and fundamental requirement for
the kind of fair trial which is this country's constitutional
goal." Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068,
13 L.Ed.2d 923 (1965). Of necessity, courts have recognized that
under certain circumstances the Confrontation Clause's preference
for live testimony must yield to competing values, most importantly
a state's interest in enforcing its criminal laws. Mattox v.
United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409
(1895). In particular, the Supreme Court has held that the
traditional common law hearsay exception allowing use of prior
testimony of a witness once subject to cross-examination, if the
witness is unavailable, also applies in the Confrontation Clause
context. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d
597 (1980); see also Fed.R.Evid. 804. In this case, Ecker does
not dispute that Ms. Diltz was subject to cross-examination at her
earlier trial. Accordingly, we focus our attention on the Texas
trial court's finding that Ms. Diltz was sufficiently unavailable
3
to trigger the unavailable witness exception to the Confrontation
Clause.
Relying on our decision in Peterson v. United States, 344
F.2d 419 (5th Cir.1965), Ecker argues that Ms. Diltz "was not dead,
beyond the reach of process nor permanently incapacitated. She was
simply unavailable at the time of trial because of [a medical
condition]. Considering the seriousness of the charges[,] if the
government desired to use [the witness's] testimony, it should have
requested a continuance to a time when she could probably be
present." 344 F.2d at 425 (alterations added). Ecker argues that,
under Peterson, the trial court could not admit Ms. Diltz's prior
testimony unless it found "that the witness is in such a state,
either mentally or physically, that in reasonable probability he
will never be able to attend the trial." 344 F.2d at 425. Ecker
acknowledges that our subsequent decision in United States v.
Amaya, 533 F.2d 188 (5th Cir.1976), cert. denied, 429 U.S. 1101, 97
S.Ct. 1125, 51 L.Ed.2d 551 (1977), phrased the standard in a
somewhat different manner. In Amaya, we held that "[a]lthough the
duration of an illness is a proper element of unavailability, the
establishment of permanence as to the particular illness is not an
absolute requirement. The duration of the illness need only be in
probability long enough so that, with proper regard to the
importance of the testimony, the trial cannot be postponed." 533
F.2d at 191. Ecker argues that even under this standard, nothing
in the physician's testimony established that the trial could not
be postponed for three or more weeks, at which time a substantial
4
probability (although not 50%) existed that Ms. Diltz would be able
to give live testimony.
Our disagreement with Ecker begins with his interpretation of
Peterson and Amaya. In our view, Peterson and Amaya suggest that
the district court should engage in a multifactored analysis when
deciding whether a witness's illness is sufficiently grave to allow
use of prior testimony. We are guided in this inquiry by the Third
Circuit's decision in United States v. Faison, 679 F.2d 292 (3d
Cir.1982),3 which identified a series of factors relevant to a
district court's decision. In particular, the Faison court relied
upon "[t]he importance of the absent witness for the case; the
nature and extent of the cross-examination in the earlier
testimony; the nature of the illness; the expected time of
recovery; the reliability of the evidence of the probable duration
of the illness; and any special circumstances counselling against
delay." 679 F.2d at 297.
The most important of the Faison factors are the first two.
A trial court deciding whether to allow use of prior testimony
should carefully consider the role a particular witness plays in
the prosecution's case, especially in light of the defense's trial
strategy. Testimony providing cumulative evidence, or addressing
a portion of the prosecution's case that the defense has not
3
Although the Faison court expressly stated that its holding
depended on an interpretation of Fed.R.Evid. 804, not of the
Confrontation Clause, we agree with Judge Becker that the court's
reasoning applies equally to the Confrontation Clause context,
even though the Confrontation Clause may require a stronger
showing of unavailability and reliability than does Rule 804.
See 679 F.2d at 298 (Becker, J., concurring).
5
disputed or does not intend to dispute, might be admitted more
readily than testimony not sharing these characteristics. See,
e.g., United States v. Atkins, 618 F.2d 366, 373 (5th Cir.1980)
(considering the parties' theories of the case in deciding whether
to allow admission of prior testimony under Fed.R.Evid. 804).
Furthermore, the trial court should evaluate the importance of the
testimony in the light of the nature of the case; when witnesses
tell conflicting versions of events, conventional wisdom suggests
that a jury's evaluation of the demeanor of the witnesses could
assist the fact-finding process. Similarly, in a close case, trial
courts should take care that "the omission of live
cross-examination ... before the new jury not tip the balance ...
against [a] defendant." Faison, 679 F.2d at 297.
Moreover, trial courts should examine the extent of and
motive for the cross-examination of the witness at the prior
hearing or trial. Defense counsel may have less motive or
opportunity to cross-examine a witness at a pre-trial proceeding
than at a trial. In some circumstances, defense counsel has been
appointed just before the hearing itself and is unfamiliar with the
case. In cases of a state preliminary hearing designed to
determined probable cause to hold the defendant for trial,
cross-examination may not be as complete because such questioning
can disclose defense strategy in a proceeding not designed to
address the ultimate issue of guilt or innocence. Alternatively,
the pre-trial hearing testimony may address a collateral issue, the
nature of a search, for instance, and thus defense counsel's
6
cross-examination might not address a more substantive issue that
happened to be included in the witness's direct testimony. In
Peterson, for example, we refused to allow the prosecution to use
a witness's testimony addressing tax evasion at a first trial to
prove conspiracy at a second, on the grounds that defense counsel
at the first trial had no motive to cross-examine the witness
regarding the facts tending to show a conspiracy. 344 F.2d at 424.
Especially in this last circumstance, trial courts should be wary
of admitting testimony when defense counsel did not have sufficient
motive or opportunity to cross-examine the relevant witness.
Courts should also consider the remaining Faison factors. If
the witness is suffering from a chronic illness and is unlikely to
recover within a reasonable length of time, a trial court should be
inclined to admit the prior testimony. See United States v. Bell,
500 F.2d 1287, 1290 (2d Cir.1974). Courts should also consider the
reliability of the evidence of the probable duration of the
illness. See United States v. Acosta, 769 F.2d 721, 723 (11th
Cir.1985) (holding that the district court did not abuse its
discretion in ruling that defense counsel's bald and uncorroborated
assertion that a witness was unable to attend a trial because of
her child's illness was insufficient to constitute unavailability
under Fed.R.Evid. 804). In the final analysis, the decision of
whether a witness is unavailable for Confrontation Clause purposes
requires an exercise of a trial court's sound discretion,
considering the possibility of a continuance in light of the
Confrontation Clause's interest in live testimony together with the
7
state and the defendant's joint interest in a prompt resolution of
the criminal charges. Our "factors" are reminders for a trial
court's exercise of judgment and discharge of duty to keep the
trial fair.
Applying the these principles to this case, we hold that the
admission of Ms. Diltz's prior testimony did not violate the
Confrontation Clause.4 Ms. Diltz's prior testimony occurred at a
previous trial on the merits. The prosecution sought to use her
testimony at the first trial to prove the same criminal offense at
issue in the second. Defense counsel had a strong motive and a
full opportunity to cross-examine Ms. Diltz fully. Moreover, Ms.
Diltz's evidence was largely cumulative and addressed issues Ecker
did not dispute at trial. Other witnesses identified both Martinez
and Ecker, and at least one other witness saw Martinez's gun.
Ecker's trial strategy was to deny knowledge that a robbery had
taken place, not to contest the fact that a crime occurred or that
Ms. Diltz identified Martinez correctly. Finally, a live expert
witness, Ms. Diltz's physician, took the stand and was
cross-examined by defense counsel on Ms. Diltz's unavailability to
testify. Finally, we find unconvincing Ecker's assertion that Ms.
Diltz might have been able to testify in four weeks.
AFFIRMED.
4
The parties fight an initial battle over the standard of
review in this case. We do not address this issue because our
result would be the same regardless of the standard adopted.
8