## Facts

- David Ray Kennedy was prosecuted for murder arising from a stabbing at a party he hosted at his trailer in October 2012.
- During the party, Kennedy and the victim, K.S., argued and fought outside; others separated them, and Kennedy went back inside.
- K.S. walked away and later started back toward Kennedy’s trailer.
- Kennedy returned outside and stabbed K.S. in the torso under the right arm, killing him.
- After leaving the scene, Kennedy called a party attendee and said he thought he had a concussion and thought he had stabbed K.S.
- After police located him, Kennedy told detectives K.S.’s death was his fault but claimed he had blacked out and did not know what happened.
- At a preliminary hearing, the State presented testimony from A.O., a teenage witness. Kennedy’s appointed counsel had been on the case for about two weeks, and the State had not yet disclosed much of the information it had about the case.
- Kennedy nonetheless cross-examined A.O. at the preliminary hearing.
- By the time of trial, A.O. was unavailable to testify. The State sought to introduce A.O.’s preliminary-hearing testimony, and the trial court allowed it to be read to the jury over Kennedy’s objection.
- A jury found Kennedy guilty of first-degree murder, and the court imposed a natural-life sentence.

## Issues

1. Did admitting A.O.’s preliminary-hearing testimony at trial violate the Sixth Amendment Confrontation Clause where A.O. was unavailable and Kennedy had cross-examined A.O. at the preliminary hearing despite limited discovery and recently appointed counsel?

## Decision

- The Arizona Court of Appeals affirmed Kennedy’s conviction and natural-life sentence.
- The court held there was no Confrontation Clause violation because A.O. was unavailable at trial and Kennedy had a prior opportunity to cross-examine A.O. at the preliminary hearing.
- The court rejected Kennedy’s argument that incomplete disclosure and limited preparation time rendered the preliminary-hearing cross-examination constitutionally inadequate.

## Legal Principles

- Testimonial statements (including preliminary-hearing testimony) may be admitted at trial without live testimony only if the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.
- “Unavailability” requires the prosecution to show reasonable, good-faith efforts to obtain the witness’s presence at trial; the State is not required to take every imaginable step.
- The Confrontation Clause requires an opportunity for effective cross-examination, not cross-examination that achieves the defense’s preferred level of effectiveness.
- Limits on preparation (including incomplete discovery or recently appointed counsel) do not automatically make prior cross-examination constitutionally insufficient when the defendant had a meaningful chance to question the witness.
- Former testimony may be admissible under the hearsay rules when the witness is unavailable and the opposing party previously had an opportunity—and a similar reason—to develop the testimony through cross-examination.

## Conclusion

The court affirmed Kennedy’s first-degree murder conviction and natural-life sentence, holding that reading A.O.’s preliminary-hearing testimony to the jury did not violate the Confrontation Clause because A.O. was unavailable for trial and Kennedy previously had a sufficient opportunity to cross-examine A.O., even though discovery was limited and counsel had been appointed shortly before the preliminary hearing.


State v. Kennedy, No. 2 CA-CR 2015-0082, 2016 Ariz. App. LEXIS 752 (2016)