State v. Daniel D. King, 2005WI App 224
For King: Scott D. Obernberger
Issue/Holding: The confrontation clause requires that the hearsay declarant be unavailable to testify at trial “and, critically, that the State make a ‘good-faith effort’ to produce the declarant at trial,” ¶6. The trial court erred in determining that the declarant was truly unavailable:
¶16 First, the State conceded that its process-server had Shelia J.’s wrong address for seven of the attempts at service. Second, a detective found Shelia J. and spoke with her after the victim-advocate learned that Shelia J., as phrased by the State in its representation to the trial court, “believes she didn’t have to come if she didn’t get a subpoena.” Yet, the detective did not then serve Shelia J., but, apparently, merely asked Shelia J. to call the district attorney’s office. Attempting to, in the State’s word, “persuade” a reluctant witness, either directly or through relatives, to come to court is not sufficient when a subpoena could have and should have been served. The district attorney may sign and issue a subpoena “to require the attendance of witnesses.” Wis. Stat. § 885.01(2). “Any subpoena may be served by any person by exhibiting and reading it to the witness, or by giving the witness a copy thereof, or by leaving such copy at the witness’s abode.” Wis. Stat. § 885.03. Further, “[i]nexcusable failure to attend any court of record is a contempt of the court,” Wis. Stat. § 885.11(3), and “[e]very court … may issue an attachment to bring such witness before it for the contempt, and also to testify,” § 885.11(2).¶17 To quote Gollon’s reflection in a related context, whether a hearsay declarant is constitutionally unavailable “is too important” to be satisfied by going-through-the-motions efforts; rather, the efforts must be adapted to the circumstances and must be unstinting. See id., 115 Wis. 2d at 601, 340 N.W.2d at 916. Indeed, even under the lower nonconstitutional standard of Wis. Stat. Rule 908.04(1)(e), the party seeking to introduce an out-of-court declarant’s hearsay assertions “must ‘specify the facts showing diligence’ and not rely on ‘a mere assertion of perfunctory showing of some diligence.’” State v. Williams, 2002 WI 58, ¶63, 253 Wis. 2d 99, 127, 644 N.W.2d 919, 933 (quoted source omitted). Not serving Shelia J. with a subpoena when that was possible and when that step was a foreseeable potential condition to her presence at trial was not reasonable, and does not reflect the constitutionally required good-faith effort to secure King’s right to confront his accuser. Accordingly, the State has not demonstrated that Shelia J. was constitutionally unavailable, and the trial court erred in permitting the jury to hear her preliminary examination testimony. See Crawford, 541 U.S. at 54.
The court, intriguingly, drops a broad hint that the facts underlying this issue should have been determined by evidentiary hearing rather than, as actually occurred, mere assertions by the State, ¶15.