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BUSH v. STATE12/1/1995
rrect and helped lead to the discovery of the automobile. Within a matter of hours after the commission of the crimes, an automobile fitting the description given by Holmes was observed by the police parked, with its motor still warm, in front of Edward Pringle's home. This automobile turned out to be the automobile used by the appellant and his accomplice in the commission
of the crimes. We find no plain error in the trial court's admission of Holmes's description of the automobile.
XXI.
The appellant contends that the trial court erred in admitting the testimony of prosecution witness Patricia Pringle from the first trial of this case. He contends that its admission was improper because, he says, (1) the state allegedly failed to lay a proper predicate for the admission of the testimony by demonstrating that it had made a sufficient and diligent effort to locate the witness and procure her attendance at the trial, and (2) his trial counsel at his first trial was allegedly "constitutionally deficient as a result of his ineffectiveness and lack of access to crucial evidence that could have been used to impeach the witness." Because the state was unable to locate Mrs. Pringle and procure her attendance at the last two trials, her testimony from the first trial was read into evidence at the second and third trials. The appellant preserved this issue for review by timely objection in the trial court on the grounds stated above.
" 'In Anderson v. State, Ala.Cr.App., 362 So.2d 1296, this court stated the general rule regarding the use of former testimony, as follows:
" ' "Testimony of a witness, in a former trial or action, given (1) under oath, (2) before a tribunal or officer having by law the authority to take testimony and legally requiring an opportunity for cross-examination, (3) under circumstances affording the party against whom the witness was offered an opportunity to test his credibility by cross-examination and (4) given in a litigation in which the issues and parties were substantially the same as in the present cause, is receivable as evidence in the present trial (5) when the personal attendance of the witness to testify in the present trial is not feasible." '
"Williams v. State, 375 So.2d 1257, 1269 (Ala. Crim. App.), cert. denied, 375 So.2d 1271 (Ala. 1979). See also, C. Gamble, McElroy's Alabama Evidence § 245.07(1) (3rd ed. 1977)."
Nolen v. State, 469 So.2d 1326, 1328 (Ala. Cr. App. 1985).
"In order for former testimony to be admissible in present litigation, proof must be made to the reasonable satisfaction of the trial judge that the personal attendance of the witness at court is not procurable or, if procurable, is ineffective, in consequence of legally recognized causes, to procure his testimony. The following cases of nonproduction of the witness have been held sufficient: that the witness is dead; that the witness is permanently or indefinitely absent from the state; that the witness cannot be found after diligent search; that the witness is in military service in time of war; that the witness is now ill and, in all probability, will never be able to testify again; that the opponent has caused the witness to be absent; that the witness is now insane; that the witness has become disqualified by facts occurring subsequent to the former trial if, but only if, the party now offering the former testimony is not responsible for such disqualification and that the witness now avails himself or herself of a privilege not to testify."
Gamble, § 245.07(8) (footnotes omitted).
" 'A sufficient predicate for a determination of unavailability is laid when the party offering the ev
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