APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
ROMITI, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
The defendant, James Burton, was indicted for the offense of murder. After a trial by jury in 1963 he was convicted and sentenced to serve a term of 20 to 30 years in the penitentiary. In an opinion filed on December 19, 1969, the Supreme Court reversed and remanded the cause for a new trial on the ground that the defendant's privilege against self-incrimination was violated by remarks of the prosecutor in the closing argument which called to the jury's attention the defendant's failure to testify. People v. Burton, 44 Ill.2d 53, 254 N.E.2d 527.
Upon remand, new counsel was appointed, and after another trial by jury the defendant was found guilty as charged and sentenced to serve 15 to 25 years in the penitentiary. On appeal from this conviction he contends (1) that he was not proven guilty beyond a reasonable doubt, (2) that improper and incompetent evidence was admitted, (3) that he was denied his right to confront the witnesses against him by reason of the State's use of transcripts from the previous trial, and (4) that improper and prejudicial remarks made by the prosecutor during closing argument deprived him of a fair trial.
We consider first the contention that the defendant was deprived of a fair trial and of his right to confrontation when testimony given at the first trial by Flora McElrath Bey and Willie Kersh who were not present at the second trial was read to the jury. Prior to trial, the State filed a written motion for leave to introduce into evidence the transcribed testimony of four unavailable witnesses who had testified on its behalf at the defendant's first trial. In the motion it was alleged that the State had made a diligent but unsuccessful attempt to locate the four witnesses. At a hearing on the motion Edward Powell, an experienced police investigator for the State's Attorney's office, testified that in the latter part of March, 1970, he was assigned to locate Flora McElrath Bey, Helen Burton, and James Willie Kersh. In seeking to find them he examined telephone directories and contacted representatives of the Post Office and of the Election Commission. He further visited the last known addresses of the prospective witnesses and conducted a search in the general community near these residences. He conferred with the long time resident owner of the building where Miss Bey, according to the last report, had lived, and with the Reverend McCoy who resided at the last known address of Willie Kersh. This investigation lasted 10 to 14 days, but did not lead to a discovery of the whereabouts of either Miss Bey or Kersh.
• 1 The Supreme Court in Bergen v. People, 17 Ill. 426, at 427, set forth the following rule, "Where a witness has testified on a former trial of the same cause, or where the same matter was in issue, between the same parties, and the witness has since died, what such witness swore to on the former occasion may be given in evidence. Here the witness was not dead, but beyond the jurisdiction of the court by the procurement of the defendant; and we think the rules of evidence do not permit, in such case, the admission of the testimony given on the former occasion." In People v. Holman, 313 Ill. 33, 144 N.E. 313, the Court recognized that the scope of the rule in Bergen should be changed; but it did not adopt the rule as urged by the appellant that the transcript of testimony taken on a former trial of the case should be admitted in evidence and read to the jury because the record did not show the existence of due diligence. The Court stated on p. 36, "It cannot be said that the writing of two or three letters is sufficient diligence to procure the whereabouts and attendance of a witness."
• 2, 3 The reasons for permitting the admission of testimony from an earlier proceeding of a person who has died are (1) that the testimony given under oath, in the presence of the accused and subject to cross-examination is trustworthy and reliable, (2) that the opportunity for cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement, and (3) that the introduction of such testimony is necessary to ensure that substantial justice is done. The same reasons apply equally when the witness has become incompetent to testify due to mental illness or when the witness cannot be located after diligent search. Recent case law has indicated that prior testimony given by a witness who became incompetent to testify due to mental illness was admissible. (See People v. Cox, 87 Ill. App.2d 243, 230 N.E.2d 900.) The aforementioned rule in like manner should be extended to the situation where a witness cannot be found after diligent search.
This extension of the rule is consistent with the practice in the Federal Courts and in most other jurisdictions. In the case of the United States v. Rhodes, 398 F.2d 655, the Court stated at page 657:
"Under the generally accepted rule, if a witness who testifies at a trial is unavailable to testify at a retrial of the same cause due to death, absence or other like reason, his testimony at the first trial is admissible at the second trial as an exception to the hearsay rule."
See: C. McCormick, Handbook of the Law of Evidence, pars. 230-238 (1954), 23 C.J.S. Criminal Law par. 893, 29 Am.Jur.2d Evidence par. 755.
• 4 The introduction of the transcribed testimony from a former proceeding against a defendant in a criminal prosecution does not contravene the accused's right to confrontation where at the earlier proceeding there was a full and adequate opportunity for cross-examination and where a good faith effort to procure the attendance of the witness has been made. In Barber v. Page, 390 U.S. 719, the Supreme Court held that an accused's right to confrontation was violated when the transcript of testimony given at a preliminary hearing by a co-defendant who at the time of trial was incarcerated in a Federal prison located outside the jurisdiction was introduced into evidence at trial without an attempt by the prosecution to secure the presence at trial of the co-defendant. The Court recognized, "It is true that there has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant." (390 U.S. at 722.) The Court then in considering when a witness is unavailable stated, "In short, a witness is not `unavailable' for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." (390 U.S. at 724-5.) Implicit in the statement of the Court is the proposition that the transcript would have been admissible had the prosecution made a good faith effort to procure the witness's attendance.
The defendant argues (1) that there was not an adequate showing of due diligence on the part of the State to locate these witnesses and (2) that he did not have an opportunity to adequately cross-examine the witnesses at the previous trial.
The question of what actions constitute reasonable diligence and a good faith effort to locate and secure the presence in court of a witness depends on the facts and circumstances of each particular case. In People v. Holman, 313 Ill. 33, 144 N.E. 313, the mailing of three letters, the last of which was sent three months prior to trial, was held insufficient. In the instant case, we are of the opinion that the State has shown a good faith effort to locate Flora Bey and James Kersh. An investigator contacted election officials and representatives of the Post Office, visited the prospective witness's last known addresses, and conferred with persons at those addresses and in the community.
• 5 The defendant further argues that the Court erred in admitting the transcripts of testimony from the first trial without considering the competency of his appointed attorney at the earlier trial. It is urged that "After the Court had indicated its reasons for admitting the transcript testimony, counsel for defendant indicated that further objection against the use of the testimony was that the defendant's attorney at the first trial was incompetent and inadequate and accordingly defendant was denied his right to cross-examine the witnesses adequately at the first trial." We have examined the transcript of evidence given by the two witnesses and are satisfied that the defendant had an adequate opportunity for cross-examination and that the witnesses were thoroughly and competently questioned.
We turn next to the three arguments relating to the admission of evidence. (1) Anna Gaff, the decedent's daughter, testified that on the day of the killing she visited her father who gave her a ten dollar bill from a large roll of money. She estimated that the roll contained three to four hundred dollars and indicated the size of the roll to the jury. She stated that she had seen her father with a similar roll of bills on prior occasions, and she was subsequently asked, "By the way, if you know, as best you can describe, what denominations were kept in that roll of bills that he kept?" She answered, "Tens, twenties." It is urged ...