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BUSH v. STATE12/1/1995
(including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. See Mancusi v. Stubbs, 408 U.S. 204 [92 S.Ct. 2308, 33 L.Ed.2d 293] (1972); Barber v. Page, 390 U.S. 719 [88 S.Ct. 1318, 20 L.Ed.2d 255] (1968). See also Motes v. United States, 178 U.S. 458 [20 S.Ct. 993, 44 L.Ed. 1150] (1900); California v. Green, 399 U.S. 161-162, 165, 167, n. 16 . . . [90 S.Ct. 1930, 1936-1937, 1938-1939, 1939 n. 16, 26 L.Ed.2d 489 (1970)]. (Footnote omitted.)
"The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that 'there is no material departure from the reason of the general rule.' Snyder v. Massachusetts, 291 U.S. , at 107 [54 S.Ct. 330, 333, 78 L.Ed. 674 (1934)]. . . .
". . . .
"In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate 'indicia of reliability.' Reliability can be inferred without more in a case where the evidence falls within a firmly
rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness."
Rouse v. State, 548 So.2d 643, 645-46 (Ala. Cr. App. 1989) (quoting Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-2539, 65 L.Ed.2d 597 (1980)) (footnotes omitted). When a state's witness is unavailable and prior recorded testimony of the witness is admitted, the requirements of the Confrontation Clause are met if that prior testimony is marked with such truthworthiness that there is no material departure from the reason of the general rule, and if it bears indicia of reliability that would afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement. Ohio v. Roberts; Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); Rouse v. State; Miles v. State, 366 So.2d 346 (Ala. Cr. App. 1978).
Having found that the prosecution demonstrated the unavailability of the witness, Mrs. Pringle, we must now determine if her testimony is marked with the required truthworthiness and indicia of reliability. We conclude that it was. These indicia of reliability include the following: The witness was under oath; the testimony was taken before an officer having by law the authority to take testimony and to legally require an opportunity for cross-examination; the proceedings were in a court of record where the testimony was officially recorded; the testimony was taken under circumstances affording the appellant an opportunity to test the credibility of the witness by cross-examination; the testimony was taken in litigation where the issues and the parties are the same as in the present case; and the appellant was represented by competent counsel, as we discuss below. We find that the introduction in evidence at the present trial of Mrs. Pringle's testimony given at a prior trial of this case was constitutionally permissible under the Confrontation Clause. The admission of her testimony was proper under the unavailability hearsay exception.
In reference to the appellant's contention in a footnote to his brief to this court that the trial court erred in not allowing the jury to take the transcript of Mrs. Pringle's testimony to the jury room, we conclude that that argume
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