Metropolitan News-Enterprise


Wednesday, March 2, 2016


Page 1


Use of Conditional Examination Testimony Violated Confrontation Clause—C.A.


By a MetNews Staff Writer


The use of an out-of-state witness’ conditional examination testimony at a Solano Superior Court trial violated the Sixth Amendment’s Confrontation Clause, because the prosecutor made no effort to produce the witness for trial, the First District Court of Appeal ruled yesterday.

Div. One overturned Alfred Foy’s conviction and 120-year-to-life sentence, under the Three Strikes Law, on seven counts of robbery and one count of possession of a firearm by a convicted felon. The conviction occurred at a retrial, after the jury at his first trial deadlocked.

Prosecutors contended that Foy and Koshawn Rackley, who was convicted on all charges at the first trial, robbed a Jack in the Box restaurant in Vallejo in November 2011, taking cell phones from several customers and employees. One of the customers whose phone was taken was Mengqiong Song, who was on her way to Lake Tahoe with friends.

Song’s iPhone was traced using her friend’s Find My iPhone application, and was found on Rackley’s person. Other stolen property was found nearby, and Rackley was carrying $600 in cash.

Foy was found in the area walking through a backyard, and was chased by police. Witnesses were unable to identify Foy, but police linked him to Rackley through cellphone traffic records.

Moved to Connecticut

Song gave videotaped conditional examination testimony in June 2012. She explained that she had moved to Connecticut three months earlier, but was in California to attend her graduation from Stanford University.

She also testified that police had shown her a flash drive that was taken from Foy when he was arrested, and that she examined the contents and recognized that it included a classmate’s math homework that had been shared with one of the friends she was at the Jack in the Box with.

Foy denied being involved in the robbery. He said he was planning to meet Rackley, whom he had only known for a couple of weeks, in order to buy “come CDs and stuff” but ran at the sight of police because he was on parole and was smoking marijuana.

‘Constitutional Unavailability’

Justice Terence Bruiniers, writing for the Court of Appeal, said the trial judge should have sustained the defense objection to the use of Song’s conditional examination testimony. While the trial judge ruled that the process complied with state law, the appellate jurist explained, it was constitutional error to admit it in the absence of “constitutional unavailability.”

Song, he explained, was not unavailable because the prosecutor knew where she was at least a week before trial and could have procured her attendance through the Uniform Act to Secure the Attendance of Witnesses from without the State in Criminal Cases, which both Connecticut and California have adopted, but made no “good faith, reasonable effort” to do so.

He cited U.S. Supreme Court, California Supreme Court, and Court of Appeal decisions involving preliminary hearing testimony. The distinctions between preliminary hearings and conditional examinations do not support a different rule, the jurist concluded.

He rejected the prosecution contention that the defense’s stipulation to allow the taped testimony to be used at the first trial established a lack of diligence. But the prosecution knew well in advance that Foy’s lawyers were objecting to the use of that evidence at the retrial, Bruiniers said.

The justice went on to say that the error was not harmless beyond a reasonable doubt. The evidence against Foy was less than overwhelming, no eyewitness identified Foy at trial as being one of the robbers, and the fact that the first jury hung suggests the case was close, he concluded.

The case is People v. Foy, 16 S.O.S. 1196.


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