Frye v. Calderon, et al

Filing 517

ORDER signed by Magistrate Judge Kimberly J. Mueller on 7/22/10 ORDERING that the court will disregard the multiple burglary charges references at pages 7, 18 and 14 through 17 of the transcript of Stg. Bryson's 8/28/08 Deposition. (Owen, K) Modified on 7/23/2010 (Owen, K).

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(DP) (HC) Frye v. Calderon, et al Doc. 517 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Respondent. 15 / 16 This court permitted petitioner to brief his challenge to the evidentiary hearing 17 testimony, taken by deposition, of respondent's witness Sgt. Eric Bryson. Sept. 11, 2009 Order 18 at 2-3. Petitioner has done so. (Docket No. 507.) Respondent filed a responsive brief. (Docket 19 No. 509.) Petitioner argued the court should disregard Sgt. Bryson's testimony that petitioner 20 was charged with, or otherwise connected to, more than one burglary because Sgt. Bryson refers 21 to only one burglary in his April 24, 2008 declaration. Petitioner identifies statements by Sgt. 22 Bryson about these additional burglaries at pages 7, 18 and 14 to 17 of the transcript of his 23 August 28, 2008 Deposition. (Docket No. 386.) 24 Respondent argues that the statement in Sgt. Bryson's declaration that petitioner 25 was used as an informant "because of his criminal ties and his life-style of committing crime" is 26 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JERRY GRANT FRYE, Petitioner, vs. WARDEN, San Quentin State Prison, ORDER No. CIV S-99-0628 LKK KJM DEATH PENALTY CASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 broad enough to cover these other burglaries. See Apr. 24, 2008 Decl. of Eric Bryson (Docket No. 273, Ex. B). Respondent further argues that the precise number of charges against petitioner is immaterial because the importance of Sgt. Bryson's testimony is that petitioner was motivated by self-interest to help Indiana police. The parties do not dispute that Sgt. Bryson mentions only one burglary charge in his declaration. To the extent Sgt. Bryson's testimony is, as respondent says, important to show petitioner's motivation to help the police, then petitioner's motivation to avoid multiple burglary charges as opposed to only one is material. Multiple charges likely would have exposed petitioner to a more severe sentence than one charge. The court finds Sgt. Bryson's reference to multiple burglary charges materially adds to the information provided in his declaration. For the reasons described in the September 11, 2009 Order, the court will disregard those references at pages 7, 18 and 14 to 17 of the transcript of Sgt. Bryson's August 28, 2008 Deposition. IT IS SO ORDERED. DATED: July 22, 2010. frye bryson testi.or2 2

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