Absent Witness was Unavailable So State Could Use Prelim Testimony Despite Crawford

Malone v. Six, 07-3268 (10/31/08) (unpub'd) - In a habeas case applying de novo review [because the state court did not rule on the issue but instead found any error harmless], the 10th held Crawford's unavailability requirement was met so as to allow the admission of an absent witness's preliminary hearing testimony.

Two criteria favored the petitioner---(1) the witness was a very important witness; and (2) the charge was serious, even though the petitioner received "only" 44 months, since he could have received 40 years. But the state had made sufficient efforts to subpoena the witness. She was apparently trying to evade service and the state believed she may have been living again with the defendant. An officer knew where the witness lived but no one ever answered the door or answered her phone, despite repeated attempts. State law allowed service by leaving the subpoena at the witness's residence and that tactic had worked to get the witness to testify at the preliminary hearing. But the 10th excused the officer from trying that again because the defendant might intercept the subpoena and there was no evidence the state would have tried that method if it did not already have the preliminary hearing testimony. The 10th did concede this was a "close" case.