Background
Johnney Ray Watkins was prosecuted after a March 2024 altercation with his mother, Kelley Burks. Burks testified at the preliminary examination that Watkins bit her cheek and lip during arguments at her home, pointed a gun at her, fired into the floor, and took her phone as she tried to call police. A responding trooper observed Burks’ severe lip injury and recovered evidence associated with the gunshot.
Burks did not appear for Watkins’ November 2024 trial. After hearing evidence about repeated attempts by police and a prosecutor’s investigator to locate and serve her, the trial court found her unavailable and admitted her preliminary-examination testimony. The jury convicted Watkins of mayhem, discharging a firearm in a building, firearm possession by a prohibited person, felonious assault, two counts of felony-firearm, and second-offense domestic violence.
Watkins also asserted before trial and at sentencing that defense counsel had not properly informed him about a plea offer or the final pretrial hearing. Counsel had told the court at the final pretrial hearing—when Watkins was absent—that Watkins wanted to accept an offer involving one year in county jail. The conflicting accounts were not resolved through sworn testimony.
The Court’s Holding
The Court of Appeals held that admitting Burks’ preliminary-examination testimony did not violate the Sixth Amendment. Multiple officers and an investigator repeatedly visited her home, called her and her daughter, emailed her, contacted family members, checked law-enforcement databases, and spoke with a neighbor. Those efforts constituted reasonable, good-faith due diligence even though additional investigative steps might have been possible.
The court also concluded that Watkins had a prior opportunity and sufficiently similar motive to cross-examine Burks. The preliminary examination concerned the same offenses later tried, and defense counsel questioned Burks about the incident while advancing the theory that she was the aggressor and had armed herself with a knife as Watkins tried to leave.
The court nevertheless remanded for a Ginther hearing on Watkins’ ineffective-assistance claim. The existing record did not establish whether counsel timely communicated a formal plea offer, and the inconsistent, unsworn statements by Watkins and counsel created a material factual dispute requiring testimony and trial-court findings. The Court of Appeals did not retain jurisdiction.
Key Takeaways
- A witness may be deemed unavailable when the prosecution makes reasonable, good-faith efforts to secure the witness’s attendance; it need not exhaust every conceivable avenue.
- Preliminary-examination testimony may be admitted without violating confrontation rights when the defendant previously had an opportunity and a sufficiently similar motive to cross-examine the witness.
- A factual dispute over whether defense counsel communicated a plea offer can require a Ginther hearing because plea bargaining is a critical stage and counsel must convey formal offers.
Why It Matters
The decision illustrates the fact-specific inquiry governing witness unavailability and confirms that differences between a preliminary examination and trial do not automatically make prior testimony inadmissible. The relevant questions are whether the prosecution acted reasonably and whether the defense’s earlier opportunity and motive for cross-examination were adequate.
It also underscores the importance of creating a clear record of plea communications. When the record contains conflicting accounts about whether an offer was conveyed and accepted, an appellate court may require an evidentiary hearing before deciding whether counsel performed deficiently and whether the defendant was prejudiced.