UNITED STATES EX REL. ROBERT FAVRE, PETITIONER-APPELLEE,
v.
C. MURRAY HENDERSON, WARDEN, LA. STATE PENITENTIARY, RESPONDENT-APPELLANT
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The court held that the district court erred in granting habeas corpus relief without determining if the alleged hearsay testimony deprived the defendant of a fundamentally fair trial.
A police officer testified about information from an unnamed informer leading to Favre's arrest, which the district court found to be hearsay violatin…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM:
The State of Louisiana appeals from the grant of habeas corpus relief to ap-pellee, Favre. During the course of Favre’s trial, a police officer was allowed to testify over objection that information received from an unnamed informer led to Favre’s arrest. The inference to be drawn from the testimony is that the informer told the officer that Favre had perpetrated the offense. The district court, 318 F.Supp. 1384, held that the officer’s testimony was hearsay and thus violated the confrontation clause of the Sixth Amendment since Favre was not allowed to discover the identity of the informer. Assuming, without now deciding, that the officer’s testimony was improper hearsay, the substance of the alleged erroneous testimony relates to the issue of identity. Favre was identified at trial by three other eyewitnesses to the crime. The district court did not make any findings as to the effect of the alleged error in context with the other identifications so as to determine whether the officer’s imputed identification of Favre denied his trial fundamental fairness. Pleas v. Wainwright, 441 F. 2d 56 (5th Cir. 1971); Hill v. Dutton, 440 F. 2d 34 (5th Cir. 1971).
We therefore vacate the judgment of the district court and remand the cause to the district court for a determination of whether the admission of this evidence deprived the defendant of a trial that was fundamentally fair or whether the admission of this evidence, although erroneous, was merely cumulative and harmless. Cf. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
Vacated and remanded.
PER CURIAM:
The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.
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Citator
Cited By
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Favre v. Henderson, 464 F.2d 359 (5th Cir. 1972)
Authorities Cited
- Isbell Enters., Inc. v. Citizens Cas. Co. OF NEW York, 431 F.2d 409 (5th Cir. 1970)
- Harrington v. California, 395 U.S. 250 (U.S. 1969)
- Pleas v. Wainwright, 441 F.2d 56 (5th Cir. 1971)
- Hill, 440 F.2d 34 (5th Cir. 1971)