Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 85 C 10114, William T. Hart, Judge.
Bauer, Chief Circuit Judge, Posner, Circuit Judge, and Fairchild, Senior Circuit Judge.
FAIRCHILD, Senior Circuit Judge.
Petitioners Bell and Gibson were convicted of rape, deviant sexual assault, attempted deviant sexual assault, and robbery. Theirs was a bench trial in the Circuit Court of Cook County, Illinois. The convictions were affirmed by the Illinois Appellate Court. People v. Bell, 132 Ill.App.3d 354, 87 Ill.Dec. 247, 476 N.E.2d 1239 (1st Dist. 1985). Justice Pincham dissented. The Illinois Supreme Court denied leave to appeal, 106 Ill.2d 556 (1985), and the United States Supreme Court denied certiorari, Bell v. Illinois, 474 U.S. 852, 88 L. Ed. 2d 127, 106 S. Ct. 153 (1985). Petitioners thereafter sought a writ of habeas corpus in the federal district court. The petition was denied and this appeal followed. We AFFIRM.
The victim, Rochelle Johnson, identified petitioners to police officers shortly after the alleged attack. She testified at a preliminary hearing on July 1, 1982, the next day, again identifying them. She was cross-examined by defense counsel appointed shortly before the hearing. Trial occurred June 22, 1983. Ms. Johnson had died in April of unrelated causes and because she was unavailable, the transcript of her testimony at preliminary hearing was received in evidence.
Petitioners contend that this use of her testimony denied their rights under the Confrontation Clause of the Sixth Amendment.
In Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980) the Supreme Court held that once a declarant has been shown to be unavailable as a witness, the test whether the use against a defendant of declarant's earlier statement violates the Confrontation Clause is whether the statement bears adequate "indicia of reliability."
The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the fact-finding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that "there is no material departure from the reason of the general rule." Snyder v. Massachusetts, 291 U.S. , at 107 [291 U.S. 97, 54 S. Ct. 330 at 332, 78 L. Ed. 674]. The principle recently was formulated in Mancusi v. Stubbs:
"The focus of the Court's concern has been to ensure that there 'are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant,' Dutton v. Evans, supra [400 U.S. 74] at 89 [400 U.S. 74, 91 S. Ct. 210 at 219, 27 L. Ed. 2d 213] and to 'afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement,' California v. Green, supra, at 161 [90 S. Ct. at 1936]. It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these 'indicia of reliability'." 408 U.S.  at 213 [92 S. Ct. 2308 at 2313, 33 L. Ed. 2d 293].
Applying this test to use at trial of testimony from a preliminary hearing, the Roberts Court found no violation of the Confrontation Clause where defense counsel had tested such testimony at preliminary with the equivalent of "significant" cross-examination. 448 U.S. at 70. See also Klein v. New Orleans , 99 U.S. 149, 166, 25 L. Ed. 430 (1970), ("In the present case, respondent's counsel does not appear to have been significantly limited in any way in the scope or nature of his cross-examination of the witness Porter at the preliminary hearing.").
This court has pointed out, in applying Roberts to testimony on preliminary examination where, as here, objections to some of the cross-examiner's questions had been sustained:
The test for determining whether preliminary hearing testimony is admissible under the Confrontation Clause, as with all hearsay, is not whether there was an opportunity for full and complete cross-examination, but whether there are adequate indicia of reliability to justify its placement before the ...