893 F2d 1338 Harris v. Vild

893 F.2d 1338

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Elton Louis HARRIS, Petitioner-Appellant,
v.
Duane VILD; Robert Corbin, Respondents-Appellees.

No. 88-15419.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 22, 1989.*
Decided Jan. 10, 1990.

Appeal from the United States District Court for the District of Arizona; Richard M. Bilby, Chief District Judge, Presiding.

Before JAMES R. BROWNING, KOZINSKI and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Harris appeals the district court's denial of his petition for a writ of habeas corpus. He claims his trial was fundamentally unfair in that the trial court erred in admitting testimony about hair samples found on a sheet which was taken from the scene of the crime and transported to the police station in the back seat of a police car. Further, he claims that the district court erred in concluding that his objection to the evidence relating to the semen analysis was procedurally barred. We affirm the district court's denial of Harris' petition.

3

* Harris was convicted by a jury on one count of sexual assault of a dangerous nature. The victim was raped in her hotel room. When the police arrived, one officer took two strands of hair from the bed sheet. He then folded the sheet and put it in the back seat of his patrol car. Some hair on the sheet was found to match Harris'. In addition, forensic experts analyzed a semen stain on the sheet. Although the analysis could not conclusively determine that the semen was Harris', it did show that he was among 26 percent of the black population who shared the same blood type and enzyme type as the rapist.

4

The day before trial, Harris' counsel filed a motion in limine to exclude testimony relating to the semen analysis, claiming that the government had not adequately laid a foundation showing that the methods used were generally accepted by the scientific community. The court denied the motion.

5

Harris' counsel also objected to the hair evidence, arguing that the sheet was contaminated before analysis by being placed on the back seat of the patrol car. The court initially upheld counsel's objection, noting a possibility that the evidence might have been contaminated. However, in a later ruling on defendant's discovery abuse, the court reversed itself on this issue and ruled the hair evidence admissible.

6

Harris appealed his conviction in the Arizona Court of Appeals based on admission of evidence relating to the hair and semen analyses. The Court of Appeals held that the trial court did not abuse its discretion in admitting both. The Arizona Supreme Court originally granted Harris' petition for review, then vacated its order and denied review.

II

7

A state trial court's ruling on admission of evidence is grounds for a writ of habeas corpus if the ruling amounted to a denial of due process. See Butcher v. Marquez, 758 F.2d 373, 378 (9th Cir.1985) (citing Wainwright v. Goode, 464 U.S. 78, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983)). To sustain such a claim, the defendant must prove that the error rendered his trial fundamentally unfair. See Pennywell v. Rushen, 705 F.2d 355, 357 (9th Cir.1983).

8

The admission of the hair evidence did not render Harris' trial fundamentally unfair. Even though the trial court found the possibility that the evidence was contaminated, this finding went to the weight of the evidence, not its admissibility. Counsel for defendant explored the possibility of contamination on cross-examination and argued the issue of the weight to be given this evidence in closing. Thus, even given the possibility that the evidence was unreliable, the defendant was not denied due process.

III

9

The Arizona Court of Appeals found Harris' second claim, that the court improperly admitted testimony about the semen analysis when the state had not established a foundation by showing that such analytical techniques are generally accepted by the scientific community, procedurally barred because the motion to exclude the evidence was not timely. See State v. Harris, 152 Ariz. 150, 730 P.2d 859, 861 (1986). Under Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), a federal court on review must defer to the state court's determination on direct review of procedural default. See also Sumner v. Mata, 455 U.S. 591, 592-93, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982).

10

Harris has not attempted to meet the cause and prejudice showing required by Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), to justify federal review on petition for a writ of habeas corpus of a claim held by the state court to have been procedurally barred. See also Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). The district court did not err in denying review of this claim.

11

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3