Herbert J. Turner v. Walter E. Craven, Warden

475 F.2d 769

Herbert J. TURNER, Plaintiff-Appellant,
v.
Walter E. CRAVEN, Warden, Defendant-Appellee.

No. 72-2691.

United States Court of Appeals,
Ninth Circuit.

March 12, 1973.

Marvin W. Friedman, San Francisco, Cal., Lonnie R. Springer, Santa Barbara, Cal., for plaintiff-appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Mark L. Christiansen, Joseph M. Cavanagh, Deputy Attys. Gen., San Diego, Cal., for defendant-appellee.

Before CHAMBERS, HAMLEY and MERRILL, Circuit Judges.

PER CURIAM:

1

Turner is a California state prisoner. He was convicted by a California state jury of felonious assault, robbery and burglary. The district court denied Turner's petition for a writ of habeas corpus, and Turner appeals.

2

The victim of Turner's crime was an elderly woman. She testified at the preliminary hearing and was subject to cross-examination. By the time of trial, however, her doctor testified and the court found that her mental and physical state made her unavailable as a witness. The transcript of her testimony at the preliminary hearing was introduced to fill the gap of her absence.

3

We have approved such a practice in properly limited circumstances. United States v. Harless, 464 F.2d 953 (9th Cir. 1972). Here, Turner challenges the unavailability of the witness. The finding of the state court on this issue is presumptively correct. 28 U.S.C. Sec. 2254(d). We agree with the district court that for all practical purposes the witness was unavailable. See United States v. Allen, 409 F.2d 611 (10th Cir. 1969). The state court made a careful inquiry on this issue, and we find no reason to upset its determination.

4

The order appealed from is affirmed.