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BUSH v. STATE12/1/1995
idence shows that it exercised due diligence in seeking the presence of the witness at trial to no avail. Williams v. Calloway, 281 Ala. 249, 201 So.2d 506 (1967); Miles v. State, 366 So.2d 346 (Ala.Crim.App. 1978).' Napier v. State, 377 So.2d 1135 (Ala.Crim.App.), cert. denied, 377 So.2d 1138 (Ala. 1979); Anderson, [362 So.2d 1296 (Ala.Crim.App. 1978)]; Williams, supra. The sufficiency of the proof of the predicate of unavailability of an absent witness is addressed to the sound discretion of the trial judge. Anderson, supra; Williams, supra; Napier, supra."
Nolen v. State, 469 So.2d at 1328.
A subpoena was issued before the third trial ordering Ms. Pringle to appear as a witness for the state. An attempt was made by the Montgomery County Sheriff's Department to serve the subpoena at her last known address. The subpoena was returned
unserved because she had moved and had left no forwarding address. When it was learned that the subpoena had not been served, the state launched a search for her, which covered a period of approximately two weeks. An assistant district attorney, an assistant attorney general, two investigators, and a deputy sheriff in Pensacola, Florida, participated in the search. A search of the Alabama drivers' license records disclosed that she had surrendered her Alabama license and had been issued a driver's license in the state of Florida. Acting on reports that she had moved to Pensacola, where she was known to have relatives, a deputy sheriff in Pensacola, who knew her personally, searched for her in that area. He attempted, without success, to contact her through her known friends and relatives. He learned that she had not been seen in the Pensacola area for approximately six months before his search. He also checked the local hospitals and jails and was unable to find any trace of her. The records of the Alabama Department of Human Resources were checked for any record of her receiving public assistance of any kind, and no record was found. Her husband, Edward Pringle, was contacted in prison, as was her sister, Eunice Williams, in Pensacola, and her former employers in Montgomery, all to no avail.
After reviewing the evidence of the effort made by the state to locate Mrs. Pringle, we are convinced that she was in fact unavailable for trial. We find that the state made a good faith effort and exercised due diligence in seeking the presence of the witness at trial. The requirement for the use of former testimony was met in this case. The trial court did not abuse its discretion in determining that the proof of the predicate of unavailability was sufficient. We recognize that the state has a greater burden than showing that the witness was unavailable. However, in this case, that burden was met.
In Gamble, we find the following:
"The [general rule regarding the use of former testimony] is customarily categorized as an exception to the hearsay evidence rule. There are several exceptions which admit testimony rendered outside the courtroom upon the theory that such is necessary and reliable. The necessity which serves as the basis of the present rule is that the testimony will be entirely lost if it cannot be admitted in the subsequent proceedings. This evidence is trustworthy and reliable because the party against whom it is now offered had the opportunity to cross-examine the witness in the former proceeding."
Id. at § 245.07(2) (footnote omitted).
"The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case
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