1 United States Court of Appeals,

Fifth Circuit.

No. 95-50223

Summary Calendar.

Karl ECKER, Petitioner-Appellant,

v.

Wayne SCOTT, Director, Texas Department of Criminal Justice,

Institutional Division; Dan Morales, Attorney General,

Respondents-Appellees.

Nov. 21, 1995.

Appeal from the United States Dis trict Court for the Western

District of Texas.

Before HIGGINBOTHAM, DUHÉ and EMILIO M. GARZA, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A Texas jury convicted Karl Ecker of aggravated robber y and

sentenced him to 25 years imprisonment. After exhausting his state

remedies, Ecker filed a petition for habeas corpus relief. S ee 28

U.S.C. § 2254. The district court adopted a magistrate judge's

recommendation that the application be denied. Ecker appeals.

Before this court, Ecke r raises only a Confrontation Clause

challenge to his conviction. We affirm.

I

The magistrate found the following facts, which Ecker does not

dispute. A man approached the cashier of a restaurant, motioned to

a pistol in his belt, and demanded money from the cashier. The

cashier, a Ms. Diltz, moved away, whereupon the man grabbed money

from the register and ran outside to a car. The car, driven by a

second man, drove off. Shortly thereafter, law enforcement1 Ecker challenged the constitutionality of this

identification procedure below, pointing out that at least one

witness subsequently misidentified Martinez at the trial, and

that the identifications of some of the other witnesses were

suspect. Ecker has abandoned this challenge on appeal.

2 Apparently, Ecker did not object to the introduction of

this evidence during the trial. The state makes no argument to

this court based on Ecker's failure to object.

2 officials found a car nearby matching witnesses' descript ions of

the car used in the robbery. A search of the car produced $700

cash and several letters addressed to Ecker. Ecker and a man named

Martinez emerged from a nearby field. Law enforcement officials

arrested them, then brought them back to the restaurant, where

several witnesses identified Martinez as the man with the gun and

Ecker as the driver of the car. 1

Ecker's first trial ended in a mist rial, but we do not know

why. At the first trial, Ms. Diltz testified and was

c ross-examined by Ecker's counsel. During the second trial, the

prosecution called Ms. Diltz's physician. The physician stated

that Ms. Diltz was receiving treatment for a bone cancer condition

which had resulted in a hip fracture, and that she would be unable

to testify fo r at least two weeks. The physician also testified

that a greater than 50% chance existed that she would not be able

to testify after three to four weeks. The physician further stated

that if Ms. Diltz were forced to testify immediately, she would

suffer a great deal of pain. On the basis of the physician's

evidence, the court allowed the prosecu tion to read Mr. Diltz's

testimony from the first trial into the record of the second. 2

Ecker argues that the state court's admission of Diltz's previous3

testimony violated his rights under the Confrontation Clause.

II

The Confrontation Clause expresses a preference for live

testimony, which allows the jury to observe the witness's demeanor

and the opposing counsel to cross examine the witness. S ee

California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 1934, 2 6

L.Ed.2d 489 (1970). "There are few subjects, perhaps, upon which

this Court and other courts have been more nearly unanimous than in

their expressions of belief that the right of c onfrontation and

cross-examination is an essential and fundamental requirement for

the kind of fair trial which is this country's constitutional

goal." Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068,

13 L.Ed.2d 923 (1965). Of necessity, courts have recognized that

under certain circumstances the Confrontation Clause's preference

for live testimony must yield to competing values, most importantly

a state's interest in enforcing its criminal laws. M attox v.

United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409

(1895). In particular, the Supreme Court has held that the

traditional com mon law hearsay exception allowing use of prior

testimony of a witness once subject t o cross-examination, if the

witness i s unavailable, also applies in the Confrontation Clause

context. O hio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d

597 (1980); s ee also Fed.R.Evid. 804. In this case, Ecker does

not dispute that Ms. Diltz was subject to cross-examination at her

earlier trial. Accordingly, we focus our attention on the Texas

trial court's finding that Ms. Diltz was sufficiently unavailable4

to trigger the unavailable witness exception to the Confrontation

Clause.

Relying on our decision in Peterson v. United States, 344

F.2d 419 (5th Cir.1965), Ecker argues that Ms. Diltz "was not dead,

beyond the reach of process nor permanently incapacitated. She was

simply unavailable at the time of trial because of [a medical

condition]. Considering the seriousness of the charges[,] if the

government desired to use [the witness's] testimony, it should have

requested a continuance to a time when she could probably be

present." 344 F.2d at 425 (alterations added). Ecker argues that,

under Peterson, the trial court could not admit Ms. Diltz's prior

testimony unless it found "that the witness is in such a state,

either mentally or physically, that in re asonable probability he

will never be able to attend the trial." 344 F.2d at 425. Ecker

acknowledges that our subsequent decision in United States v.

Amaya, 533 F.2d 188 (5th Cir.1976), cert. denied, 429 U.S. 1101, 97

S.Ct. 1125, 51 L.Ed.2d 551 (1977), phrased the standard in a

somewhat different manner. In A maya, we held that "[a]lthough the

duration of an illness is a proper element of unavailability, the

establishment of permanence as to the particular illness is not an

absolute requirement. The duration of the illness need only be in

probabi lity long enough so that, with proper regard to the

importance of the testimony, the trial cannot be postponed." 533

F.2d at 191. Ecker argues that even under this standard, nothing

in the physician's testimony established that the trial could not

be postponed for three or more weeks, at which time a substantial3 Although the Faison court expressly stated that its holding

depended on an interpretation of Fed.R.Evid. 804, not of the

Confrontation Clause, we agree with Judge Becker that the court's

reasoning applies equally to the Confrontation Clause context,

even though the Confrontation Clause may require a stronger

showing of unavailability and reliability than does Rule 804.

See 679 F.2d at 298 (Becker, J., concurring).

5 probability (although not 50%) existed that Ms. Diltz would be able

to give live testimony.

Our disagreement with Ecker begins with his interpretation of

Peterson and Amaya. In our view, Peterson and Amaya suggest that

the district court should engage in a multifactored analysis when

deciding whether a witness's illness is sufficiently grave to allow

use of prior testimony. We are guided in this inquiry by the Third

Circuit's decision in United States v. Faison, 679 F.2d 292 (3d

Cir.198 2), 3 which identified a series of factors relevant to a

district court's decision. In particular, the F aison court relied

u pon "[t]he importance of the absent witness for the case; the

nature and extent of the cross-examination in the earlier

testimony; the nature of the illness; the expected time of

recovery; the reliability of the evidence of the probable duration

of the illness; and any special circumstances counselling against

delay." 679 F.2d at 297.

The most important of the Faison factors are the first two.

A trial court deciding whether to allow use of prior testimony

s hould carefully consider the role a particular witness plays in

the prosecution's case, especially in light of the defense's trial

strategy. Testimony providing cumulative evidence, or addressing

a portion of the prosecution's case that the defense has not6

disputed or does not intend to dispute, might be admitted more

readily than testimony not sharing these characteristics. S ee,

e.g., United States v. Atkins, 618 F.2d 366, 373 (5th Cir.1980)

(considering the parties' theories of the case in deciding whether

to allow admission of prior testimony under Fed.R.Evid. 804).

Furthermore, the trial court should evaluate the importance of the

testimony in the light of the nature of the case; when witnesses

tell conflicting versions of events, conventional wisdom suggests

that a jury's evaluation of the demeanor of the witnesses could

assist the fact-finding process. Similarly, in a close case, trial

courts should take care that "the omission of live

cross-examination ... before the new jury not tip the balance ...

against [a] defendant." Faison, 679 F.2d at 297.

Moreover, trial courts shoul d examine the extent of and

motive for the cross-examination of the witness at th e prior

hearing or trial. Defense counsel may have less motive or

opportunity to cross-examine a witness at a pre-trial pro ceeding

than at a trial. In some circumstances, defense counsel has been

appointed just before the hearing itself and is unfamiliar with the

case. In cases of a state preliminary hearing designed to

determined probable cau se to hold the defendant for trial,

cross-examination may not be as complete because such questioning

can disclose defense strate gy in a proceeding not designed to

address the ultimate issue of guilt or innocence. Alternatively,

the pre-trial hearing testimony may address a collateral issue, the

nature of a s earch, for instance, and thus defense counsel's7

cross-examination might not address a more substantive issue that

happened to be included in the witness's direct testimony. In

Peterson, for example, we refused to allow the prosecution to use

a witness's testimony addressing tax evasion at a first trial to

prove conspiracy at a second, on the grounds that defense counsel

at the first trial had no motive to cross-examine the witness

regarding the facts tending to show a conspiracy. 344 F.2d at 424.

Especially in this last circumstance, trial courts should be wary

of admitting testimony when defense counsel did not have sufficient

motive or opportunity to cross-examine the relevant witness.

Courts should also consider the remaining Faison factors. If

the witness is suffering from a chronic illness and is unlikely to

recover within a reasonable length of time, a trial court should be

inclined to admit the prior testimony. S ee United States v. Bell,

500 F.2d 1287, 1290 (2d Cir.1974). Courts should also consider the

reliability of the evidence of the probable duration of the

i llness. S ee United States v. Acosta, 769 F.2d 721, 723 (11th

Cir.1985) (holding that the district court did not ab use its

discretion in ruling that defense counsel's bald and uncorroborated

assertion that a witness was unable t o attend a trial because of

her child's illness was insufficient to constitute unavailability

under Fed.R.Evid. 804). In the final analysis, the decision of

whether a witness is unavailable for Confrontation Clause purposes

requires an exercise of a trial court's sound discretion,

considering the possibility of a continuance in light of the

Confrontation Clause's interest in live testimony together with the4 The parties fight an initial battle over the standard of

review in this case. We do not address this issue because our

result would be the same regardless of the standard adopted.

8 state and the defendant's joint interest in a prompt resolution of

the criminal charges. Our "factors" are reminders for a trial

court's exercise of judgment and discharge of duty to keep the

trial fair.

Applying the these principles to this case, we hold that the

admission of Ms. Diltz's prior testimony did not viol ate the

Confrontation Clause. 4 Ms. Diltz's prior testimony occurred at a

previous trial on the merits. The prosecution sought to use her

testimony at the first trial to prove the same criminal offense at

issue in the second. Defense counsel had a strong motive and a

full opportunity to cross-examine Ms. Diltz fully. Moreover, Ms.

Diltz's evidence was largely cumulative and addressed issues Ecker

did not dispute at trial. Other witnesses identified both Martinez

and Ecker, and at least one other witness saw Martinez's gun.

Ecker's trial strategy was to deny knowledge that a robbery had

taken place, not to contest the fact that a crime occurred or that

Ms. Diltz identified Martinez correctly. Finally, a live expert

witness, Ms . Diltz's physician, took the stand and was

cross-examined by defense counsel on Ms. Diltz's unavailability to

testify. Finally, we find unconvincing Ecker's assertion that Ms.

Diltz might have been able to testify in four weeks.

AFFIRMED.