Bishop, In re

Decision Date26 June 1968
Docket NumberNo. A--14795,A--14795
Citation443 P.2d 768
PartiesIn re Habeas Corpus of E. M. (Pete) BISHOP.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Syllabus by the Court

1. The primary purpose of the confrontation clause of the Sixth Amendment to the U.S. Constitution was to prevent deposition or ex parte affidavits being used against the prisoner in lieu of a personal examination and cross-examination of the witness.

2. By cross-examination of the witness the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.

3. The accused's failure to cross-examine a witness at preliminary hearing may constitute a waiver of the right of confrontation at a subsequent trial, as being an intentional relinquishment or abandonment of a known right or privilege, if the prosecution properly shows that the witness is actually unavailable to testify at the subsequent trial, and that sufficient effort has been exercised to produce the witness to testify.

4. The right to confrontation is basically a trial right which includes the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.

5. A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial; its function being limited to a determination of whether probable cause exists to hold the accused for trial.

6. When there is a showing by the State that the witness is actually unavailable to testify at a subsequent trial, such may be justification for holding the opportunity for cross-examination at preliminary hearing satisfies the demands of the confrontation clause of the Sixth Amendment of the U.S. Constitution.

7. A denial of a constitutional right to a person prosecuted for a crime is prima facie prejudicial.

8. When a person is held in custody under a void order of commitment, or is imprisoned without due process of law under the sentence of any court of the State, it is not only within the authority of the Court of Criminal Appeals, but it is its duty upon habeas corpus proceeding to inquire into the illegality of the commitment when the matter is properly brought before it by petition.

9. If it be adjudged in a proper habeas corpus hearing that the order of commitment was made without authority of law, the person will be entitled to a discharge from custody in order to preserve the constitutional right of persons not to be deprived of liberty without due process of law.

Original proceeding in habeas corpus, wherein petitioner is seeking his discharge from a judgment and sentence imposed by the district court of Tulsa County, Oklahoma, because his constitutional rights of confrontation under the Sixth Amendment to the U.S. Constitution, made applicable to the States by the Fourteenth Amendment to the U.S. Constitution, was denied. Writ granted in accordance herewith.

Elmore A. Page, Tulsa, for petitioner.

Pat Flanagan, Asst. Dist. Atty., Tulsa County, Tulsa, for respondent.

BRETT, Judge:

Petitioner herein, E. M. (Pete) Bishop, seeks his discharge from a judgment and sentence imposed on January 17, 1962, by the district court of Tulsa County, Oklahoma, on which he was sentenced to serve eight years in the state penitentiary for the offense of armed robbery, conjoint, after former conviction of a felony.

Petitioner and Max Leroy Steed, Jack Allen Barber, and Charles Henry Woods were jointly charged with the commission of armed robbery, allegedly committed on July 30, 1961. They were granted separate trials, and petitioner was tried by a jury and convicted. At a separate trial Jack Allen Barber was also convicted of the same offense. Barber's subsequent successful appeal to the United States Supreme Court by certiorari has a material bearing on the matter before the Court, and for that reason that case will be referred to herein.

At the preliminary hearing on the conjoint charge, held on August 22, 1961, in the Tulsa County Court of Common Pleas, one defendant, Charles Henry Woods, elected to testify for the State and his testimony was transcribed into record form. Subsequently, at petitioner's trial the State contended that the material witness, Charles Henry Woods, was unavailable to testify in that he was incarcerated in the federal penitentiary at Texarkana, Texas. Over defendant's objections the trial court permitted the reading of the transcript of the witness' preliminary hearing testimony. The same situation also existed when Jack Allen Barber was tried, except his counsel Did not cross-examine the witness at the preliminary hearing, whereas petitioner's counsel Did exercise his right to cross-examine the witness.

Petitioner attempted to appeal his conviction to this Court, but such appeal failed when the attorney general's motion to dismiss for the reason the case-made failed to contained a copy of the record of judgment and sentence, was sustained. See: Bishop v. State, Okl.Cr., 377 P.2d 845 (1963). Again, however, Jack Allen Barber did successfully appeal his conviction to this Court, on essentially the same grounds stated in petitioner's attempted appeal, but Barber's conviction was affirmed. See: Barber v. State, Okl.Cr., 388 P.2d 320 (1963).

Thereafter Barber sought relief in the Federal Courts by petition for writ of habeas corpus. Relief was denied in the U.S. District Court, 239 F.Supp. 265 and on appeal to the United States Court of Appeals, Tenth Circuit, 381 F.2d 479, the District Court's action was affirmed. Barber then appealed to the United States Supreme Court by certiorari. The Supreme Court accepted Barber's case, and on April 23, 1968 handed down its opinion reversing and remanding the denial of the writ of habeas corpus in the lower courts.

Petitioner now seeks relief in this Court by petition for writ of habeas corpus, basing his relief on the United States Supreme Court decision in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, October term, 1967. Petitioner contends the factual situation in his case is the same as that of Barber. Petitioner sets forth that the transcript of testimony of the absent witness, Charles Henry Woods, was read to the jury allegedly because the witness was 'unavailable to testify', because of his incarceration in the federal penitentiary at Texarkana, Texas.

Petitioner further sets forth in his petition that his constitutional rights under the Sixth Amendment to the United States Constitution (confrontation clause thereof) were violated, when the trial court permitted the reading of the transcript of testimony of Woods, at his trial; and that the provisions of the Sixth Amendment have been made applicable to the states through the Fourteenth Amendment to the U.S. Constitution; and, that petitioner is therefore entitled to be discharged from the Tulsa County district court judgment and sentence.

Incidental to the earlier trial in Tulsa County from which petitioner is seeking relief, he was granted a parole from the State penitentiary on or about July 13, 1965. Thereafter, petitioner and several others were tried and convicted in the Federal District Court on 'counterfeiting' charges, for which petitioner was sentenced by the U.S. District Court for the Northern District of Oklahoma in case No. 67--Cr--58, on May 21, 1968. In passing judgment and sentence, the U.S. District Court recognized the State's outstanding claim against petitioner, and provided that when such State sentence is completed, petitioner shall be delivered to the U.S. Marshal for commencement of his federal penitentiary sentence.

In the habeas corpus proceeding now before this Court, petitioner contends that the Tulsa County district court judgment and sentence is Void, because his constitutional rights were violated when he stood trial; and that he is entitled to the same relief granted Jack Allen Barber, by the United States Supreme Court.

About the only difference between petitioner's situation and that of ...

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16 cases
  • State v. Elisondo
    • United States
    • Idaho Supreme Court
    • June 9, 1988
    ...effort, that said witnesses were truly unavailable. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); In re Bishop, Okl.Cr., 443 P.2d 768 (1968). Whether the State can maintain this burden is necessarily a question of proof. The glaring examples at either end of the spectr......
  • Whitehead v. State
    • United States
    • Texas Court of Criminal Appeals
    • October 9, 1968
    ...there is also a showing that the witness is actually unavailable after a good faith effort to secure his presence at the trial. See In Re Bishop, 443 P.2d 768. I do interpret such language as showing the court's concern as to the disparity between the goals which motivate the production of ......
  • Simpson v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • June 8, 1994
    ...California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Fritz v. State, 730 P.2d 530, 534 (Okl.Cr.1986); In re Bishop, 443 P.2d 768, 773 (Okl.Cr.1968). This standard has effectively supplanted what would appear to be an even higher standard used by this Court in pre-Chapman c......
  • Smith v. State, F--75--621
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • February 13, 1976
    ...failed to appear at trial, being absent from the state in a federal prison in Texas. Construing Barber, this Court in In re Bishop, Okl.Cr., 443 P.2d 768 (1968), found the crux of the Barber decision '(L)ie in the recognized fact that the State made no showing that any effort whatsoever was......
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