A Witness Disappearing on the Day of Trial Case
In People v. Lopez (1998) 64 Cal.App.4th 1122, the defendant was charged with crimes arising from his assault of Danielle, his girlfriend of five years. ( Id. at p. 1124.) Danielle testified at the preliminary hearing. (See ibid.) On April 23, 1997, an investigator with the district attorney's office spoke with Danielle. ( Id. at p. 1125.) The investigator reported that Danielle gave no indication that she would not be in court. (Ibid.) On April 29, 1997, the prosecution subpoenaed Danielle for trial. ( Id. at p. 1124.)
The trial began on May 27, 1997. ( Lopez, supra, 64 Cal.App.4th at p. 1124.) On the Tuesday or Wednesday of the week prior to trial, the prosecutor spoke to a victim advocate, who informed the prosecutor that Danielle knew that she would be needed for trial the next week. ( Id. at p. 1125.) Danielle gave no indication that she would not be available. (Ibid.) On May 28, the District Attorney's investigator learned that Danielle was not returning telephone calls. (Ibid.) The investigator telephoned Danielle, left a message and went to her address. He was unable to find her. (Ibid.)
On May 29, the prosecutor informed the trial court that he understood that Danielle was in Las Vegas and that she would be present to testify on June 2. ( Lopez, supra, 64 Cal.App.4th at p. 1124.) On June 2, the prosecutor told the court that Danielle was unavailable and sought permission to use her testimony from the preliminary hearing. ( Lopez, supra, 64 Cal.App.4th at p. 1124.)
The District Attorney's investigator indicated that just before coming to court he had obtained a possible address for Danielle in Las Vegas, but that he had not verified the address or made a call to the Las Vegas police. ( Id. at p. 1125.) The trial court concluded that the prosecution had been reasonably diligent in its efforts to locate Danielle. ( Id. at p. 1128.)
The court rejected the defendant's complaints that "it was more than a month since the prosecution last communicated with Danielle. " The court explained that the prosecution had no reason to believe that Danielle would not cooperate and therefore the prosecution had "no reason to keep in closer contact." In response to other defense arguments, the court explained that "the prosecution was not required to do everything possible to procure Danielle's attendance; it was only required to use reasonable diligence." (Ibid.)
In People v. Lopez, the witness was subpoenaed for trial on April 29, 1997. The trial began on May 27. On May 29, the prosecutor told the court that he had learned the witness, Danielle M., was in Las Vegas and asked for a continuance until Monday, June 2.
When Danielle did not appear on the 2nd, the prosecutor asked to use her preliminary hearing testimony and the court held a due diligence hearing. The prosecutor informed the court that his office had contact with Danielle a week before the trial when a witness coordinator told her that her testimony would be needed the following week.
The prosecutor had no information that she would not appear until May 28. An investigator testified that on May 28, he went to Danielle's residence after she failed to return his phone call. After he could not locate her, the investigator went to her grandfather's house, who gave the investigator a possible address for Danielle in Las Vegas. The investigator was unable to verify the address or send police to determine whether she was there, as the information came just before he had to testify at the due diligence hearing. (Id. at pp. 1124-1125.)
The defendant claimed that the prosecution failed to show due diligence, relying on the fact that the investigator did nothing with the information he had obtained regarding the witness's possible presence in Las Vegas.
The court responded that "the prosecution was not required to do everything possible to procure Danielle's attendance; it was only required to use reasonable diligence. There is nothing to indicate that had the prosecution been able to verify Danielle's Las Vegas address she would have returned in time to testify. . . . Had Danielle been anxious to testify, she had plenty of time before June 2, 1997, to contact the prosecutor and make arrangements to appear." (People v. Lopez, supra, 64 Cal.App.4th at p. 1128.) In People v. Lopez, the prosecutor's office spoke to the victim one month prior to trial, there was no reason to believe she would not cooperate, and she was subpoenaed to testify at the trial. The victim disappeared on the day of trial. On the day of her scheduled testimony, the investigator contacted a relative, who believed she was living in Las Vegas. (Id. at pp. 1224-1225.)
Although the investigator made no effort to determine whether she was actually living in Las Vegas, Lopez held the prosecution used due diligence to attempt to secure her appearance:
"The prosecution was not required to do everything possible to procure the victim's attendance; it was only required to use reasonable diligence. There is nothing to indicate that had the prosecution been able to verify the victim's Las Vegas address she would have returned in time to testify. That the reason given for the victim's trip to Las Vegas may have had nothing to do with the trial does not mean the prosecution could have obtained her timely return. Had the victim been anxious to testify, she had plenty of time before the trial to contact the prosecutor and make arrangements to appear." (Id. at p. 1128.)