Two men committed a robbery at a Jack in the Box restaurant. Unwisely, the robbers stole the victims' cell phones which were easily located using the "find my phone" application. . The police found a stolen phone inside the getaway car and arrested Foy nearby.
Prior to Foy's first trial, a conditional examination was taken of one of the victims because she lived in Connecticut and had been in California for a one-time event. At the first trial, which resulted in a mistrial, Foy didn't object to admission of the conditional exam. Foy did object at the second trial, but the trial court admitted the conditional exam. Foy was convicted and sentenced to 120-life.
The First District reverses for violation of Foy's right to confront his accuser under the Sixth Amendment to the U.S. Constitution.
The central issue is whether the witness was "unavailable" under the Constitutional standard. Specifically, did the prosecution use good faith efforts to obtain her attendance at trial? The prosecutor contacted the witness in Connecticut, but she didn't want to come back to California to testify. No attempt was made to secure her attendance using the Uniform Act (a interstate agreement to secure cross-state attendance of witnesses), despite both California and Connecticut being signatories. This was not enough, says the First District.
Because the witness was not unavailable, it violated Foy's confrontation right and the conviction is reversed.
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