## Facts

- Zachariah Garrison was charged with multiple offenses arising from a burglary-related incident.
- At Garrison’s first trial, Jessee Guizzotti testified for the State under oath and was subject to cross-examination by the defense.
- The trial court declared a mistrial in the first proceeding.
- Before the second trial, the State issued a subpoena for Guizzotti to testify again.
- When attempting service, the State learned Guizzotti no longer lived at her last known address, and the State did not have a forwarding address or other confirmed location for her.
- To locate Guizzotti, the State contacted people connected to her, including a former neighbor, her sister, and the father of her children; none could provide information about where she was living.
- The State asked the trial court to treat Guizzotti as unavailable and to admit her testimony from the first trial at the second trial.
- Garrison objected, arguing the State had not shown sufficient unavailability and that admitting prior testimony would violate the Confrontation Clause and Washington evidence rules.
- The trial court found Guizzotti unavailable and admitted the transcript of her prior testimony under the former-testimony exception.
- The jury convicted Garrison at the second trial.
- Garrison appealed, challenging the unavailability finding and the admission of Guizzotti’s former testimony.

## Issues

1. Whether the State made a good-faith effort to secure Guizzotti’s attendance so that she was “unavailable” for purposes of ER 804 and the Sixth Amendment, permitting admission of her prior trial testimony at the second trial.

## Decision

- The Court of Appeals affirmed Garrison’s convictions.
- The court held the State’s attempts to serve the subpoena and to locate Guizzotti through contacts connected to her constituted a good-faith, diligent search.
- The court concluded Guizzotti was unavailable under ER 804(a) and for Confrontation Clause purposes.
- The court held admitting Guizzotti’s former testimony was proper because it was given under oath at a prior trial involving the same defendant and charges, and the defense had an adequate prior opportunity to cross-examine her with the same motive.
- The court rejected Garrison’s argument that the State was required to invoke out-of-state witness procedures, distinguishing cases where the State knew (or had reason to know) a witness was outside Washington.

## Legal Principles

- Former testimony may be admitted under ER 804(b)(1) if the declarant is unavailable and the party against whom the testimony is offered previously had an opportunity and similar motive to develop the testimony by examination.
- A witness is unavailable under ER 804(a) when the witness is absent and the proponent cannot obtain the witness’s attendance by process or other reasonable efforts.
- For Confrontation Clause purposes, prior testimonial statements such as former trial testimony may be admitted only if the witness is unavailable despite the State’s good-faith efforts and the defendant had a prior opportunity for cross-examination.
- The State must show diligence and good faith in attempting to locate and produce the witness, but it is not required to try every conceivable method when reasonable steps have failed.
- Statutory procedures for compelling testimony of an out-of-state witness are not required when there is no showing that the missing witness is outside the state or that the State has information triggering those procedures.

## Conclusion

State v. Garrison affirmed the admission of a key witness’s testimony from a prior mistried proceeding because the State showed it tried in good faith to serve a subpoena and locate the witness through available contacts but could not find her, making her unavailable under ER 804 and the Sixth Amendment; since Garrison had already cross-examined the witness at the first trial on the same matters, using the former testimony at the second trial was permitted and the convictions were affirmed.


State v. Garrison, No. 39173-2-II, 2010 Wash. App. LEXIS 2455 (2010)