State v. Alexander
1972 Ariz. LEXIS 396, 108 Ariz. 556, 503 P.2d 777 (1972)
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Rule of Law:
To use a witness's prior testimony under the Confrontation Clause, the prosecution must prove with competent evidence that it made a good-faith effort to secure the witness's presence at trial. An in-court identification following a pre-trial photographic identification procedure that was so impermissibly suggestive as to create a substantial likelihood of irreparable misidentification also violates due process.
Facts:
- On November 26, 1969, two men, one with a distinctive 'Fu Man Chu mustache,' robbed the Tidelands Motor Inn in Tucson.
- The night clerk, Steven Kasai, and a porter, Ronald Battleson, were eyewitnesses to the robbery.
- In an initial photo lineup, both witnesses failed to identify the defendant, Billy Ray Alexander, and instead picked someone else.
- In a second photo lineup, police told the witnesses they had previously chosen the wrong person, showed them photos of Alexander that had been altered with ink to add facial hair, and confirmed their subsequent selection of Alexander as 'correct.'
- After the robbery, key witness Steven Kasai moved to California but returned to testify at Alexander's preliminary hearing.
- Just before the trial, Kasai traveled to Florida on business, and his wife, located in California, did not know his precise location.
Procedural Posture:
- Billy Ray Alexander was charged with armed robbery in the Superior Court of Arizona, the state's trial court of general jurisdiction.
- Alexander pled not guilty and was set for a jury trial.
- On the morning of trial, the prosecution moved for a continuance, alleging that a key witness, Steven Kasai, was unavailable.
- The trial court denied the continuance but granted the prosecution's request to introduce the transcript of Kasai's preliminary hearing testimony over the defendant's objection.
- After a pre-trial hearing on the admissibility of eyewitness identification, the trial court found the pre-trial photo lineup was unduly suggestive but ruled that the proposed in-court identifications were not tainted and were therefore admissible.
- A jury convicted Alexander of armed robbery.
- Alexander was sentenced under Arizona's recidivist statute to a term of fifteen to twenty years in prison.
- Alexander appealed his conviction directly to the Supreme Court of Arizona, the state's highest court.
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Issue:
Does the admission of a witness's preliminary hearing testimony violate a criminal defendant's Sixth Amendment right to confrontation when the prosecution's only proof of the witness's unavailability is a prosecutor's hearsay affidavit, without evidence of having issued a subpoena or used other legal means to secure attendance?
Opinions:
Majority - Lockwood, Justice.
No. The admission of the witness's preliminary hearing testimony violated the defendant's Sixth Amendment right to confrontation because the prosecution failed to make a 'good-faith effort' to obtain the witness's presence at trial. The right to confront witnesses, guaranteed by both the U.S. and Arizona Constitutions, requires the prosecution to prove unavailability through competent evidence, not mere assertions. Citing Barber v. Page, the court established that a witness is not 'unavailable' unless the prosecution has made a genuine, good-faith effort to secure their attendance. Here, the state's only proof was a prosecutor's hearsay affidavit, which is insufficient. The prosecution neglected to use available legal tools, such as issuing a subpoena or utilizing the Uniform Act to Secure the Attendance of Witnesses. The court also held that the pre-trial photo identification was so 'impermissibly suggestive' due to the alteration of only Alexander's photo and the police commentary that it created a 'substantial likelihood of irreparable misidentification,' thus tainting the subsequent in-court identifications. The prosecution failed to show by clear and convincing evidence that the in-court identifications had an independent origin. Both errors were found to be harmful and reversible, mandating a new trial.
Analysis:
This decision reinforces the stringent requirements of the Sixth Amendment's Confrontation Clause, establishing that a 'good-faith effort' to secure a witness is a demonstrable standard that requires more than prosecutorial convenience or unsubstantiated claims. It solidifies the precedent that prosecutors must exhaust available legal mechanisms, like interstate subpoenas, before a witness can be deemed constitutionally 'unavailable.' The case also serves as a strong condemnation of suggestive police identification procedures, clarifying that overtly suggestive actions, such as altering only a suspect's photograph and providing feedback to witnesses, create a taint on subsequent identifications that is exceedingly difficult for the state to prove originated from an independent source.
