Dres v. Campoy

• Decision Date: 13 March 1986
• Docket Number: No. 84-6580,84-6580
• Citation: 784 F.2d 996
• Parties: 20 Fed. R. Evid. Serv. 354 John Adrian DRES, Petitioner-Appellant, v. Joseph CAMPOY, Warden, and Attorney General of the State of California, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 996

784 F.2d 996

20 Fed. R. Evid. Serv. 354

John Adrian DRES, Petitioner-Appellant, v. Joseph CAMPOY, Warden, and Attorney General of the State of California, Respondents-Appellees.

No. 84-6580.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 7, 1985.

Decided March 13, 1986.

Paul E. Potter, Pasadena, Cal., for petitioner-appellant.

Donald F. Roeschke, David F. Glassman, Deputy Attys. Gen., Los Angeles, Cal., for respondents-appellees.

Appeal from the United States District Court Central District of California.

Before HUG and HALL, Circuit Judges, and JAMESON, ^* District Judge.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Petitioner, John Adrian Dres, appeals from the district court's denial of his writ of habeas corpus. The petitioner was convicted of first-degree murder in California. The California Court of Appeals affirmed and the California Supreme Court denied a hearing. Petitioner's initial writ of habeas corpus was dismissed because it included unexhausted state claims. Petitioner appealed unsuccessfully again to the California Supreme Court and then filed the instant writ of habeas corpus. The district court adopted the recommendation in the magistrate's report and dismissed the second petition. We affirm.

I

On July 26, 1975 a night watchman discovered the body of Smiley Hughes on Berth 118 Road in Long Beach, California. An autopsy revealed that his nose and jaw had been fractured and that he had been stabbed four times. Police arrested petitioner in connection with the murder a few weeks later.

Petitioner's girlfriend, Gayle Ostberg, a minor, disappeared after being subpoenaed to testify at petitioner's preliminary hearing. Sheriff's deputies arrested her in Encinitas, California, and returned her to Long Beach to testify. Ostberg testified at the preliminary hearing that petitioner admitted killing Hughes because Hughes had threatened petitioner's mother with a knife. Her testimony included a detailed account of how petitioner killed Hughes. Ostberg further testified that on the night of the murder she saw the petitioner at his mother's house and that he was drunk, had blood on his shirt, and cuts on his knuckles.

Prior to petitioner's trial for murder, Ostberg moved to Arizona to live with her mother. The prosecutor contacted Ostberg's mother concerning the need for her daughter's testimony at trial. Her mother agreed to bring Ostberg to California to testify, though she was "not happy" about accompanying her daughter to California. Ostberg's mother also sent the prosecution a letter supposedly written by Ostberg which exonerated petitioner by claiming that Ostberg had murdered Hughes.

Approximately three weeks before trial, Ostberg ran away from her mother's home. The prosecution's efforts to locate Ostberg proved unsuccessful. Ostberg's friends said she moved somewhere in California, but none of them could offer more specific information. At trial, the court allowed the prosecution to introduce Ostberg's pretrial testimony over a hearsay objection because Ostberg was unavailable as a witness. Petitioner now claims that this ruling violated his sixth amendment right to confront witnesses against him.

II

State court findings of fact are presumed correct in habeas corpus proceedings. Sumner v. Mata, 449 U.S. 539, 546-49, 101 S.Ct. 764, 768-70, 66 L.Ed.2d 722 (1981); 28 U.S.C. Sec. 2254(d). We review evidentiary rulings for an abuse of discretion. United States v. McClintock, 748 F.2d 1278, 1291 (9th Cir.1984), cert. denied, --- U.S. ----, 106 S.Ct. 75, 88 L.Ed.2d 61 (1985); United States v. Turk, 722 F.2d 1439, 1441 (9th Cir.1983), cert. denied, --- U.S. ----, 105 S.Ct. 86, 83 L.Ed.2d 33 (1984). A state trial court's decision that a witness is "unavailable" is an evidentiary ruling usually reviewed for an abuse of discretion. People v. Blackwood, 138 Cal.App.3d 939, 945, 188 Cal.Rptr. 359, 363 (1983) (citing People v. Williams, 9 Cal.3d 24, 35, 106 Cal.Rptr. 622, 506 P.2d 998 (1973) ). However, we review de novo the question of whether the Supreme Court's standards for unavailability have been satisfied in this case. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

III

In Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), the Supreme Court established that a defendant's sixth amendment right to confront witnesses applies to the states through the fourteenth amendment. ¹ The right to confront witnesses serves three purposes: (1) to insure reliability by means of oath, (2) to expose the witnesses to cross-examination, and (3) to permit the trier of fact to weigh the demeanor of the witness. California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970).

A defendant's confrontation right, however, is not absolute. "[T]here has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant." Barber v. Page, 390 U.S. 719, 722, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255 (1968). The California Evidence Code follows this rule. Section 1291 provides: "(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and ... (2) [t]he party against whom the testimony is offered ... had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing."

Drawing upon Barber v. Page, the Supreme Court created in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), a two-prong test for the admissibility of testimony from a preliminary hearing. First, the sixth amendment right of confrontation establishes a rule of necessity. Roberts, 448 U.S. at 65, 100 S.Ct. at 2538. The prosecution must prove the unavailability of a witness before prior testimony can be introduced. Id. Second, assuming a witness is unavailable, the prior testimony must meet certain "indicia of reliability." Id. at 65-66, 100 S.Ct. at 2539.

A

The crux of this case is whether Ostberg was unavailable as a witness for petitioner's trial. "[A] witness is not 'unavailable' for purposes of the ... exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." Barber, 390 U.S. at 724-25, 88 S.Ct. at 1322. The lower courts in this case concluded that the prosecution made a good faith effort to procure Ostberg's testimony. ² Petitioner argues, however, that the lower courts erred in finding good faith because the prosecutor failed to use the Uniform Act to Secure Attendance of Witnesses from Without the State, Cal.Penal Code Sec. 1334 (Uniform Act). The Uniform Act allows courts to compel the attendance of witnesses living in other states which have enacted similar statutes.

Petitioner bases his argument on two grounds. First, California Evidence Code Sec. 240(a)(5) provides that a witness is unavailable if he or she is "[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process." A California court's "process" includes the powers under the Uniform Act. People v. Masters, 134 Cal.App.3d 509, 522-23, 185 Cal.Rptr. 134 (1982). Second, Petitioner argues that dictum in Barber v. Page, 390 U.S. at 723 n. 4, 88 S.Ct. at 1321 n. 4, suggests that a finding of good faith is precluded when the prosecutor fails to use the Uniform Act. His interpretation appears to be supported by our interpretation of Barber: "The Court indicated that if the prosecution fails to make use of the Uniform Act ... it has not made the required 'good faith effort' and cannot use the prior testimony." Daboul v. Craven, 429 F.2d 164, 167 (9th Cir.1970).

The good faith obligation to resort to the Uniform Act, however, arises only when the prosecutor knows the location of the witness. Roberts, 448 U.S. at 75-77, 100 S.Ct. at 2543-44; Masters, 134 Cal.App.3d at 523-24, 185 Cal.Rptr. 134. See also Poe v. Turner, 490 F.2d 329, 331-32 (10th Cir.1974) (resort to Uniform Act not required when whereabouts of witness unknown). Cf. People v. Davis, 29 Cal.3d 814, 176 Cal.Rptr. 521, 527, 633 P.2d 186, 192 (1981). If the witness cannot be located, application of the Uniform Act is impossible. In cases in which the witness disappears, the prosecution only has a good faith obligation to find the witness. Masters, 134 Cal.App. 523-26, 185 Cal.Rptr. 134. See also State v. Kim, 55 Hawaii 346, 350 519 P.2d 1241, 1244 (Hawaii 1974) (prosecutor must make good faith effort to locate witness).

Petitioner further contends that the prosecutor did not make a good faith effort to secure Ostberg's attendance because her home address and telephone number in Arizona were known for months in advance of trial. During this period, the prosecution failed to comply with the available procedures under the Uniform Act for procuring Ostberg's attendance. Because Ostberg fled only a few weeks before trial, petitioner argues the prosecution failed to use the Uniform Act in the hopes that Ostberg would be unavailable at trial. The prosecution could in this way avoid a cross-examination of Ostberg concerning the letter she wrote exonerating the petitioner.

Initial paperwork under the Uniform Act had in fact been prepared by the prosecutor's office. A tactical decision was made not to serve Ostberg with a subpoena because the prosecutor feared she might flee as she had done prior to the preliminary hearing. The prosecutor faced a dilemma under the Uniform Act because if he served Ostberg with a subpoena she might flee, yet if he failed to seek a subpoena the trial court might find that he had not made a good faith effort to obtain her testimony. The only other...