Barber v. Page, No. 9015.
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
| Writing for the Court | BREITENSTEIN and ALDRICH, Circuit , and KERR |
| Citation | 381 F.2d 479 |
| Parties | Jack Allen BARBER, Appellant, v. Ray H. PAGE, Warden, Appellee. |
| Docket Number | No. 9015. |
| Decision Date | 09 October 1967 |
381 F.2d 479 (1966)
Jack Allen BARBER, Appellant,
v.
Ray H. PAGE, Warden, Appellee.
No. 9015.
United States Court of Appeals Tenth Circuit.
December 30, 1966.
Rehearing Denied March 24, 1967.
Certiorari Granted October 9, 1967.
C. E. Barnes, Oklahoma City, Okl., for appellant.
Charles L. Owen, Asst. Atty. Gen. (Charles Nesbitt, Atty. Gen., of Oklahoma, was with him on the brief), for appellee.
Before BREITENSTEIN and ALDRICH*, Circuit Judges, and KERR, District Judge.
Certiorari Granted October 9, 1967. See 88 S.Ct. 115.
BREITENSTEIN, Circuit Judge.
For the second time, appellant appeals from a judgment denying him, a state prisoner, habeas corpus relief. In Barber v. Page, 10 Cir., 355 F.2d 171, we remanded because the record did not show that appellant had exhausted his state remedies. The district court held a second evidentiary hearing, found that the state remedies had in fact been exhausted, and denied relief.
The only point for consideration is whether the appellant was denied his Sixth Amendment right to be confronted by the witnesses against him. He, an individual named Woods, and at least one other were charged with robbery. At a preliminary hearing, an attorney named Parks was retained to represent both appellant and Woods. Woods was called to the stand. The attorney advised him of his right to claim the privilege against self-incrimination. After a recess, the attorney requested, and was granted, leave to withdraw as attorney for Woods. In the presence of appellant and his attorney, Woods testified and incriminated the appellant. He was not cross-examined by appellant's attorney, Parks, but was by the attorney for other accused.
At the trial, a transcript of Woods' testimony at the preliminary hearing was received in evidence over appellant's objections. Appellant was convicted and the judgment was affirmed by the Oklahoma Court of Criminal Appeals. Barber v. State, Okl.Cr., 388 P.2d 320. Woods was not present at the trial because he was then an inmate of a federal penal institution located in Texas. In the circumstances presented Oklahoma permits a transcript of the testimony to be used at the trial. Id. at 324.
Pointer v. State of Texas, 380 U.S. 400, 403-406, 85 S.Ct. 1065, 13 L.Ed. 2d 923, holds that the right of confrontation includes the right of cross-examination
Appellant says that the state was not diligent in securing the attendance of Woods at the trial. He was not subject to Oklahoma process. Although an application could have been made to a federal court for a writ of habeas corpus ad testificandum, the grant of such a writ is discretionary. Gilmore v. United...
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Ohio v. Roberts, No. 78-756
...a rebuff." Barber v. Page, 390 U.S., at 724, 88 S.Ct., at 1322, quoting from the dissenting opinion in that case in the Court of Appeals (381 F.2d 479, 481 (CA10 1966)). But the service and ineffectiveness of the five subpoenas and the conversation with Anita's mother were far more than mer......
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Whitehead v. State, No. 41483
...His conviction was affirmed by the Oklahoma Court of Criminal Appeals. On certiorari from the Tenth Circuit Court of Appeals' affirmance (381 F.2d 479) of the federal district court's rejection of Barber's habeas corpus claim of a confrontation denial, the United States Supreme Court revers......
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State v. Beadle , No. 84204–3.
...(1968) (“ ‘[T]he possibility of refusal is not the equivalent of asking and receiving a rebuff’ ” [265 P.3d 872] (quoting Barber v. Page, 381 F.2d 479, 481 (10th Cir.1966) (Aldrich, J., dissenting))). ¶ 41 Without distinguishing between B.A.'s testimonial and nontestimonial hearsay statemen......
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People v. Ware, Cr. 16043
...in dissent below, 'the possibility of a refusal is not the equivalent of asking and receiving a rebuff.' 381 F.2d, at 481 (Barber v. Page, 381 F.2d 479, 10 Cir.). In short, a witness is not 'unavailable' for purposes of the foregoing exception to the confrontation requirement unless the pro......
-
Ohio v. Roberts, No. 78-756
...a rebuff." Barber v. Page, 390 U.S., at 724, 88 S.Ct., at 1322, quoting from the dissenting opinion in that case in the Court of Appeals (381 F.2d 479, 481 (CA10 1966)). But the service and ineffectiveness of the five subpoenas and the conversation with Anita's mother were far more than mer......
-
Whitehead v. State, No. 41483
...His conviction was affirmed by the Oklahoma Court of Criminal Appeals. On certiorari from the Tenth Circuit Court of Appeals' affirmance (381 F.2d 479) of the federal district court's rejection of Barber's habeas corpus claim of a confrontation denial, the United States Supreme Court revers......
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State v. Beadle , No. 84204–3.
...(1968) (“ ‘[T]he possibility of refusal is not the equivalent of asking and receiving a rebuff’ ” [265 P.3d 872] (quoting Barber v. Page, 381 F.2d 479, 481 (10th Cir.1966) (Aldrich, J., dissenting))). ¶ 41 Without distinguishing between B.A.'s testimonial and nontestimonial hearsay statemen......
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People v. Ware, Cr. 16043
...in dissent below, 'the possibility of a refusal is not the equivalent of asking and receiving a rebuff.' 381 F.2d, at 481 (Barber v. Page, 381 F.2d 479, 10 Cir.). In short, a witness is not 'unavailable' for purposes of the foregoing exception to the confrontation requirement unless the pro......