US SUPREME COURT DECISIONS

New York State sentenced respondent as a second offender, based on his 1964 felony conviction in Tennessee. Respondent's petition for federal habeas corpus, denied by the District Court, was granted by the Court of Appeals, which concluded that the Tennessee conviction violated his Sixth and Fourteenth Amendment right to confront witnesses and thus was not available as the predicate for a "second offender" stiffer punishment. The State then resentenced respondent to the same sentence, based upon still another conviction in Texas.

Held:

1. New York State's resentencing of respondent did not moot the instant case, since the respondent's appeal involving the validity of the Texas conviction is still in the New York state courts, and therefore New York State has a present interest in the availability of the Tennessee conviction as a predicate for the stiffer punishment. Pp. 408 U. S. 205-207.

2. Upon discovering that a State's witness had removed himself permanently to a foreign country, the State of Tennessee was powerless to compel his attendance at respondent's second trial, either through its own process or through established procedures depending upon the voluntary assistance of another government; the resultant predicate of unavailability was sufficiently strong not to warrant a federal habeas corpus court's upsetting the State's determination that the witness was not available. Barber v. Page, 390 U. S. 719, distinguished. Pp. 408 U. S. 207-213.

3. Where a State's witness is bona fide unavailable, the requirements of the Confrontation Clause are met when prior-recorded testimony of the witness is admitted, as occurred in the 1964 trial, if that prior testimony bears "indicia of reliability" that would afford "the trier of fact a satisfactory basis for evaluating the truth of the prior statement." Dutton v. Evans, 400 U. S. 74, 400 U. S. 89. Pp. 408 U. S. 213-216.

442 F.2d 561, reversed.

REHNQUIST, J., delivered the opinion of the Court, in which chanrobles.com-red

Page 408 U. S. 205

BURGER, C.J.,and BRENNAN, STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. MARSHALL, J., filed a dissenting opinion, in Part II of which DOUGLAS, J., joined, post, p. 408 U. S. 216.