Lee v. Kemna, 534 U.S. 362, 8 (2002)

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Cite as: 534 U. S. 362 (2002)

Opinion of the Court

At some point in the late morning or early afternoon, the alibi witnesses left the courthouse. Just after one o'clock, Lee took the stand outside the presence of the jury and, for the record, responded to his counsel's questions concerning his knowledge of the witnesses' unanticipated absence. App. 15. Lee, under oath, stated that Gladys and James Edwards and Laura Lee had voluntarily traveled from California to testify on his behalf. Id., at 16. He affirmed his counsel's representations that the three witnesses, then staying with Lee's uncle in Kansas City, had met with Lee's counsel and received subpoenas from him; he similarly affirmed that the witnesses had met with a Kansas City police officer, who interviewed them on behalf of the prosecutor. Id., at 16-18. Lee said he had seen his sister, mother, and stepfather in the courthouse that morning at 8:30 and later during a recess.

On discovering the witnesses' absence, Lee could not call them at his uncle's house because there was no phone on the premises. He asked his girlfriend to try to find the witnesses, but she was unable to do so. Id., at 17. Although Lee did not know the witnesses' whereabouts at that moment, he said he knew "in fact they didn't go back to California" because "they [had] some ministering . . . to do" in Kansas City both Thursday and Friday evenings. Id., at 18. He asked for "a couple hours' continuance [to] try to locate them, because it's very valuable to my case." Ibid. Defense counsel subsequently moved for a continuance until the next morning, to gain time to enforce the subpoenas he had served on the witnesses. Id., at 20. The trial judge responded that he could not hold court the next day because "my daughter is going to be in the hospital all day . . . [s]o I've got to stay with her." Ibid.

and defense counsel, who reminded him that the instruction was no longer necessary. Tr. 594-595.


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