Michael Douglas Burr v. G. E. Sullivan, Superintendent, Oregon State Correctional Institution

This case comes to us as an appeal from an order of the district court granting a habeas corpus petition. The District Court for the District of Oregon held that appellee Michael Burr was denied his right of confrontation when the Oregon state court trying him for arson prohibited Burr’s attorney from asking Burr’s alleged accomplices about burglaries which they had admitted in prior juvenile proceedings pertaining to other crimes. We affirm.

*585 In the state court appellee was charged with arson for setting a high school on fire. He was tried as an adult and without a jury. He was convicted of First Degree Arson under Or.Rev.Stat. § 164.325. The state presented no physical evidence linking appellee to the arson.' It based its case on the testimony of two juvenile accomplices. One juvenile testified that he drove appellee to and from the high school and that he saw appellee set the fire. The other juvenile testified that he witnessed the arson and that he carried the gasoline can back to the car.

On cross-examination, one of the witnesses testified that he had admitted to the commission of fifty-two burglaries in a juvenile proceeding conducted after the arson. The state…

concurring:

I concur in the result reached by the majority. The cross-examination of the second juvenile accomplice elicited the admitted commission of 48 burglaries without objection. The relevance and materiality of the evidence was obvious. I agree with the majority that the sua sponte striking of this evidence requires reversal. I therefore would not reach the question whether Burr’s counsel preserved the error when he failed to specify with clarity the basis of his cross-examination of the first juvenile accomplice on similar facts. As the question will not arise during retrial, there is no reason for us to reach the issue.

618 F.2d 583 Michael Douglas BURR, Petitioner-Appellee, v. G. E. SULLIVAN, Superintendent, Oregon State Correctional Institution, Respondent-Appellant. No. 77-2294. United States Court of Appeals, Ninth Circuit. May 9, 1980. W. Michael Gillette, James A. Redden, Atty. Gen., Catherine Allan, Asst. Atty. Gen., Salem, Or., for respondent-appellant. Elliot Holden, Portland, Or., for petitioner-appellee. Appeal from the United States District Court for the District of Oregon. Before WALLACE and KENNEDY, Circuit Judges, and LARSON, * District Judge. KENNEDY, Circuit Judge: 1 This case comes to us as an appeal from an order of the district court granting a habeas corpus petition. The District Court for the District of Oregon held that appellee Michael Burr was denied his right of confrontation when the Oregon state court trying him for arson prohibited Burr's attorney from asking Burr's alleged accomplices about burglaries which they had admitted in prior juvenile proceedings pertaining to other crimes. We affirm. 2 In the state court appellee was charged with arson for setting a high school on fire. He was tried as an adult and without a jury. He was convicted of First Degree Arson…