Gorum v. Craven, 71-3017.

• Decision Date: 18 August 1972
• Docket Number: No. 71-3017.,71-3017.
• Citation: 465 F.2d 443
• Parties: James L. GORUM, Petitioner-Appellee, v. Walter E. CRAVEN, Warden, Folsom State Prison, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

465 F.2d 443 (1972)

James L. GORUM, Petitioner-Appellee, v. Walter E. CRAVEN, Warden, Folsom State Prison, Respondent-Appellant.

No. 71-3017.

United States Court of Appeals, Ninth Circuit.

August 18, 1972.

Russell Iungerich, Deputy Atty. Gen. (argued), S. Clark Moore, Deputy Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., Evelle J. Younger, Atty. Gen., Los Angeles, Cal., for respondent-appellant.

Mark Himelstein (argued), Richard M. Sims, III, of Penrod, Himelstein, Savinar & Sims, San Francisco, Cal., for petitioner-appellee.

Before MERRILL and KILKENNY, Circuit Judges, and TAYLOR,^* District Judge.

TAYLOR, District Judge:

The appellee, James L. Gorum, was convicted and sentenced on two counts of armed robbery in violation of the California Penal Code, Section 211 in the Superior Court of the County of Los Angeles.

After having exhausted his state remedies, appellee filed a petition for a writ of habeas corpus in the United States District Court for the Central District of California, which court made and entered an order conditionally granting the petition. The appellant has appealed from this order and we affirm.

The question presented to the District Court and here is whether appellee's Sixth Amendment rights to confrontation were violated when the testimony of the state's principal and only witness was introduced as evidence against appellee at trial from the transcript of the preliminary hearing over the objection of his counsel. The District Court held that they were and we agree.

The undisputed facts reveal that just prior to trial on the first day thereof, the prosecution informed counsel for appellee that the victim of the robbery alleged in one count, a Mr. Phillip Smith, was living in New Jersey and would not be available as a witness at the trial. During a conference in chambers, the prosecution indicated that it planned to introduce Mr. Smith's testimony from the preliminary hearing at which time appellee's counsel objected.

It appears that the prosecution had subpoenaed Smith several weeks prior to the date of trial and had planned to have him fly to California to testify. When the prosecutor telephoned to arrange for Smith's trip to California, he was informed by Smith's wife, who was in "tears", that "he had just gotten a job and he would lose his job. . . ." It was then that the prosecution decided to introduce the transcript of the preliminary hearing instead of having the witness Smith appear at the trial. The decision was apparently made by the prosecution solely on the statements made to him via telephone by Smith's wife without contacting or talking to the witness personally or to his employer. No other effort was made by the prosecution to obtain the appearance of this witness at the trial and appellee's counsel was not informed he would not be present until the day of and prior to trial. Nevertheless, on this showing the trial court admitted the testimony of Smith from the preliminary hearing as evidence over the objection of counsel for appellee and no other evidence or testimony was presented on that particular count.

The transcript of a witness's testimony given at a preliminary hearing may not be introduced at the trial of a criminal case unless the prosecution has made a "good faith effort" to obtain the witness's appearance at the trial. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968).

Barber was held to apply retroactively in Berger v. California, 393 U.S. 314, 315, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969). In 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 prior testimony. See Daboul v. Craven, 429 F.2d 164-167 (9th Cir. 1970). The Uniform Act referred to has been in effect in California since 1937 and in New Jersey since 1941. California Penal Code, Sec. 1334 et seq.; New Jersey Stats.Ann., Sec. 2A: 81-18 et seq.

The Uniform Act provides a procedure for determining whether, because of hardship, a witness should not be required to appear at trial, which procedure was not employed in this case, even though the prosecution had ample opportunity to do so. In Barber v. Page, supra, 390 U.S. at page...