COMMONWEALTH vs. KENT A. SIEGFRIEDT.

NOLAN, J. The defendant, Kent A. Siegfriedt, was convicted on March 22, 1985, after a second jury trial, [Note 1] of wilful and malicious burning of a dwelling house. There was evidence from which the jury could find that the defendant intentionally set his mattress afire. The judge committed the defendant, pursuant to G. L. c. 123, Section 15 (e) (1986 ed.), to the Massachusetts Correctional Institution at Bridgewater for up to twenty days of examination. Subsequently, the defendant was sentenced to the Massachusetts Correctional Institution at Concord. On May 1, 1985, the defendant filed a timely notice of appeal. We allowed the defendant's request for direct appellate review.

The defendant raises three issues in this appeal. First, the defendant contends that his Sixth Amendment right to confront witnesses against him was violated when the judge admitted in evidence a tape recording of a missing witness's testimony given at a probable cause hearing. Second, the defendant argues that the allowance of the prior recorded testimony in evidence violated his State constitutional and statutory rights to meet his accuser "face to face" at his trial. Third, the defendant complains that the judge's denial of his motions for a bifurcated trial on the issues of the defendant's lack of criminal responsibility and on the merits of the indictment deprived him of due process of law. We reject these arguments.

1. Prior recorded testimony. On July 8, 1983, Christopher A. Martell testified under oath at the defendant's probable cause hearing in the Boston Municipal Court. Martell related that the defendant made an inculpatory statement to him shortly before the mattress fire began in the defendant's room in a

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Beacon Hill rooming house. Counsel for the defense conducted a cross-examination of Martell. Before the probable cause hearing ended, a police officer requested that Martell communicate with the police if he changed his address. The witness disappeared, however, sometime after the hearing and failed to notify the police of his whereabouts.

After police officers were unsuccessful in their efforts to locate Martell, the Commonwealth filed a motion to allow the introduction of the witness's prior recorded testimony at the defendant's trial. During the hearing on the motion, Detective Lieutenant Louis Scapicchio described the Commonwealth's efforts to locate Martell. [Note 2] The defendant objected to the introduction of Martell's testimony on the grounds that the Commonwealth had failed to establish a good faith effort to locate the witness, and the testimony was not reliable because the defendant did not have an adequate opportunity to cross-examine Martell during the probable cause hearing. The judge subsequently declared Martell to be an unavailable witness and allowed a tape of his prior recorded testimony to be played to the jury. [Note 3]

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Prior recorded testimony may be admitted in evidence only when it is established that the witness is "unavailable" to testify at trial and the prior testimony is deemed "reliable." Commonwealth v. Bohannon, 385 Mass. 733, 741 (1982). See Commonwealth v. Salim, 399 Mass. 227 (1987). We require proof of both necessity (shown by unavailability) and reliability because the introduction of previously recorded testimony directly implicates the defendant's Federal and State constitutional rights to confront witnesses against him. [Note 4] Commonwealth v. Bohannon, supra at 741.

a. Unavailability. Before allowing the introduction of prior recorded testimony, the judge must be satisfied that the Commonwealth has made a good faith effort to produce the witness at trial. Barber v. Page, 390 U.S. 719, 724-725 (1968). While the defendant concedes that Martell was absent at the first trial, he insists that the witness was not unavailable in the constitutional sense. The defendant's argument is unpersuasive. On the facts before him, the judge was justified in concluding that the Commonwealth engaged in a diligent, although unsuccessful, search for Martell and that the witness was unavailable to testify at trial.

The defendant further contends that, after his first trial ended in a mistrial, the Commonwealth failed to conduct good faith efforts to secure the witness's presence at the second trial. The defendant cites Commonwealth v. Bohannon, supra, in support of his position that the Commonwealth cannot justify its inactivity by merely relying on the judge's prior finding of the witness's unavailability. The defendant's reliance on Commonwealth v. Bohannon is misplaced. In that case, we concluded that a motion judge abused his discretion by adopting another motion judge's finding, made eight months earlier, on a witness's unavailability rather than making his own determination at the time of the trial. Id. at 744. As we noted, the crucial

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inquiry is whether the witness is available "to testify in person at the time [the] former testimony is to be admitted in evidence." Id. at 744-745.

The instant case is readily distinguishable from Commonwealth v. Bohannon, supra. Here, the same judge presided at both trials. The judge was fully cognizant of the Commonwealth's extensive efforts during the first trial to locate the witness. After reasonably deciding that the witness was unavailable for the first trial, the judge reached the same conclusion for purposes of the second trial approximately one week later. The judge did so after hearing Lieutenant Scapicchio's testimony that additional telephone calls to the witness's family and periodic street patrols in the witness's former neighborhood yielded no new information.

It is clear from the judge's findings that he did not merely adopt his former ruling on Martell's availability as a witness. [Note 5] Moreover, given the short time that separated the two trials, it was hardly necessary for the Commonwealth to repeat each of the steps already taken in its attempt to locate the witness. See Ohio v. Roberts, 448 U.S. 56, 74 (1980).

b. Reliability. After the Commonwealth has demonstrated that a witness is unavailable, it must then establish the reliability of the previously recorded testimony before a judge is warranted in admitting the record in evidence. Commonwealth v. Trigones, 397 Mass. 633, 637 (1986). The test for reliability involves two components. First, the testimony must be shown to be reliable when given. Second, it must be shown that the testimony was accurately preserved. [Note 6] Commonwealth v. Bohannon, supra at 746.

The defendant contends that Martell's testimony should not have been admitted in evidence because it lacked sufficient

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indicia of reliability. Specifically, the defendant claims that his cross-examination of Martell during the probable cause hearing was constitutionally inadequate because he subsequently learned that the witness's real name was Albert Ciccarelli, Jr., and that the witness overstated his employment status and function while testifying. The defendant maintains that the jury would have been in a better position to evaluate Martell's credibility if defense counsel had cross-examined him on those points during the probable cause hearing.

Despite the defendant's implication to the contrary, he is not entitled under the confrontation clause to a cross-examination that is "effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985). In the instant case, the defendant was represented by counsel at the probable cause hearing. That hearing focused on the same issue subsequently presented at trial. The transcript reveals that the witness, while under oath, underwent extensive cross-examination. The underlying purpose of the confrontation clause of the Sixth Amendment was satisfied by the thorough cross-examination of Martell at the hearing. California v. Green, 399 U.S. 149, 166 (1970). Commonwealth v. Bohannon, supra at 747 (first component of reliability satisfied once Commonwealth establishes that witness testified under oath and was cross-examined during proceeding on substantially same issue).

The fact that there may have been a more extensive cross-examination during the probable cause hearing if defense counsel had questioned the witness about his assumption of another name and exaggerated employment status does not undermine the reliability of the otherwise trustworthy, previously recorded testimony so as to preclude its admission. See California v. Green, supra at 160-161. Rather, it is sufficient that the previous cross-examination of Martell provided the jury with a constitutionally adequate basis for evaluating the witness's credibility. [Note 7] Id. at 161. We therefore conclude that the prior recorded

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testimony bore sufficient indicia of reliability to justify its admission in evidence. [Note 8]

2. State constitutional and statutory rights. The defendant's second issue on appeal requires the resolution of the question whether the language of art. 12 and G. L. c. 263, Section 5 (1986 ed.), provides the defendant with more protection against the introduction of a witness's previously recorded testimony than does the Sixth Amendment. We conclude that in these circumstances the specific language of art. 12 and G. L. c. 263, Section 5, does not impose a stricter standard than that of the Sixth Amendment.

Article 12 provides in pertinent part that an individual accused of a crime "shall have a right . . . to meet the witnesses against him face to face" (emphasis added). Language to this effect is also set forth in G. L. c. 263, Section 5 (1986 ed.). In addition, c. 263, Section 5, contains the proviso that such a confrontation occur "at his trial."

The defendant contends that the terms "face to face" and "at his trial" effectively preclude the jury from considering the prior recorded testimony of a witness where, as here, the defendant had no opportunity to confront the witness in person before the jury. The defendant's argument is without merit. In Commonwealth v. Gallo, 275 Mass. 320, 329, 334 (1931), we concluded that art. 12 permitted the admission in evidence of previously recorded testimony upon a showing of necessity and reliability. In Commonwealth v. Mustone, 353 Mass. 490, 492 (1968), we reiterated that there is no violation of the

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constitutional right of confrontation where the defendant had an adequate opportunity to cross-examine the witness and the prior testimony could be reproduced accurately. Here, both of these requirements were satisfied.

3. Bifurcation. The defendant also claims constitutional error in the judge's denial of his motions for a bifurcated trial on the issues of guilt and insanity. We have stated previously that generally there is no constitutional right to a bifurcated trial on the merits of the case and the issue of the defendant's lack of criminal responsibility. Commonwealth v. Bumpus, 362 Mass. 672, 681 (1972), judgment vacated and remanded on other grounds, 411 U.S. 945 (1973), aff'd on rehearing, 365 Mass. 66 (1974), reviewed on a petition for habeas corpus sub nom. Bumpus v. Gunter, 425 F. Supp. 1060 (D. Mass. 1978). Rather, the granting of a motion for a bifurcated trial rests within the sound discretion of the judge. See Commonwealth v. O'Connor, 7 Mass. App. Ct. 314, 319 (1979), citing Commonwealth v. Haas, 373 Mass. 545, 562 (1977), S.C., 398 Mass. 806 (1986). We find no abuse of discretion on the record of this case.

Judgment affirmed.