John Adrian Dres v. Joseph Campoy, Warden, and Attorney General of the State of California

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: 1 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…

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.

*998 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…

dissenting:

I respectfully dissent.

Without a doubt, Gayle Ostberg’s preliminary hearing testimony was the most damaging evidence admitted at petitioner’s trial. As the majority summarized, Ostberg testified that petitioner admitted killing Hughes because Hughes had threatened petitioner’s mother with a knife. Her testimony also included a detailed account of how petitioner killed Hughes — that on the night in question Ostberg saw the petitioner at his mother’s home in a drunken state, wearing a blood stained shirt, with knuckles that were badly bruised and cut. The devastating nature of her testimony was obvious; she was a key part of the state’s case. Before trial, Ostberg’s mother sent the prosecution a letter that Ostberg had written sometime earlier. In the letter, Ostberg exonerated petitioner and implicated herself in the Hughes, murder.

In order to admit Gayle Ostberg’s preliminary hearing testimony, the prosecution must satisfy a two-prong test established by the Supreme Court in Ohio v. Roberts, 448 U.S. 56, 65 , 100 S.Ct. 2531, 2538 , 65 L.Ed.2d 597 (1980). The first prong establishes a rule of necessity; the prosecution must demonstrate that Gayle Ostberg is…