857 F2d 1477 Ethington v. Goldsmith

857 F.2d 1477

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Jack Edward ETHINGTON, Plaintiff-Appellant,
v.
Warden GOLDSMITH, Attorney General of the State of Arizona,
Defendants-Appellees.

No. 87-1660.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 12, 1988.
Decided Sept. 1, 1988.

Before GOODWIN, SCHROEDER and POOLE, Circuit Judges.

1

MEMORANDUM*

2

An Arizona prisoner appeals from the denial of his petition for a writ of habeas corpus. All state remedies have been exhausted. We affirm.

3

Ethington was convicted on two counts of kidnapping, two counts of aggravated assault, and one count of armed robbery. The convictions arose out of a series of events involving Ethington and his codefendants, Ohta and Cunningham, and another accomplice, Simpson.

4

According to the trial testimony of Robert Penn, the state's chief witness, on the morning of July 7, 1980, Penn and his roommate Lanham and Lanham's son were at home in Scottsdale. At about 8:30, Penn woke up at the sound of the door being broken in. Ethington and Ohta came through the door, each pointing a gun at Penn. Ohta demanded money.

5

The three forced Penn into a van at gunpoint. Ethington took Penn's car keys and left in Penn's car. The two vehicles met at a shopping center. Ethington climbed into the van, and the van drove away. Ethington demanded of Penn whether anyone owed him money. Penn gave them Yates' name, but would not give his address. Ethington told Penn that he would shoot him unless Penn gave Yates' address. Ethington shot Penn in the back, and Penn gave Yates' address.

6

Simpson stayed in the van to guard Penn, while the others went into the house. The three returned with Yates. Ethington and Ohta had guns pointed at Yates. Ethington was also carrying a bundle of rifles wrapped in a bedspread. After placing the rifles in the van, Ethington went to Yates' car and removed a pair of binoculars. Ohta said, "We don't need Randy anymore, let him go." Yates returned to his house.

7

The van then went to Simpson's house. The three walked Penn into the house where he has blindfolded and told to lie on the kitchen floor.

8

Ohta argued with Simpson's girlfriend about money and then shot her. Ethington shot Penn again, hitting him in the hip. Ethington said he would not kill Penn if Penn would promise not to go to the police. The three threatened to kill Penn and his family if he did not pay $1000 within a week. Sometime in the afternoon Simpson dropped Penn off in a hospital parking lot.

9

Lanham also testified to the events that took place at his and Penn's residence. His testimony was consistent with Penn's. He also identified Ethington and Ohta in the courtroom.

10

Approximately two weeks later, Ethington was arrested on an unrelated matter. The arresting officers testified that they reached inside petitioner's car and removed a .25 caliber pistol in plain view. Ethington reached toward the outside of his right thigh. The officer, seeing a shiny .45 caliber automatic lying next to Ethington's right leg, jerked Ethington from the car. Ethington asked the officers to keep the .45 separate, because it was his "favorite weapon," and he didn't want it getting mixed up with the others and lost. At trial, Penn identified this as the gun Ethington had carried. A search of the car revealed other weapons, all loaded. A wallet was found in the car, which Penn identified at trial as his wallet. The officers also found a pair of binoculars. Penn identified these as Yates' binoculars.

11

Ethington was using an alias and was booked under that name. After Ethington was booked, Detective Thomas from the robbery division came to question him. Thomas had also been working on the Penn/Yates incident and had questioned Penn in the hospital.

12

Thomas began questioning Ethington as to his identity. Ethington gave his name as Aubrey Duhan and had an ID card with that name. Ultimately, Ethington said that his nickname was "Jack" and that he lived with a man named "Ohta." At that point, about 20 minutes into the interview, Thomas suspected that Ethington could be the "Jack" who had been involved in the assault on Penn. The detective then gave Ethington his Miranda rights, which Ethington waived. When Thomas told Ethington that Penn had been shot twice, Ethington became irate, and said that police were always protecting dopers. When Thomas told Ethington that Ethington had no right to shoot Penn, Ethington said that no jury in the world would convict him of shooting a doper. When Thomas asked Ethington what he did for a living, Ethington said he was "a debt collector, a bounty hunter and an enforcer[,] and also a bouncer at times."

13

On July 23, 1980, Thomas interviewed Ohta who denied everything. On July 17, 1980, Penn had correctly identified Cunningham in a photo line-up. On July 20, 1980, Penn correctly identified Ohta in one photo line-up and Ethington in another.

14

Officer Courtenay testified that she interviewed Lanham who gave a description and license number of a van. Officer Courtenay stopped a similar van the next week whose driver was Cunningham. Courtenay found a loaded .357 pistol between the front seats. At trial, Penn identified this gun as the gun carried by Ohta. Blood in the van matched Penn's blood type--Type O.

15

When Ohta and Cunningham were subsequently arrested, a gun and knife were taken from Cunningham's person. At trial, Penn identified the knife as the knife that Ethington had taken from him.

16

Yates had agreed to testify. However, Yates feared for his safety and left the state, promising to stay in contact and return for trial. Yates testified at Simpson's probation revocation hearing and gave testimony damaging to Ethington and Ohta. The prosecutor was in contact with Yates during the trial. Yates told the prosecutor he would be there, but never showed up.

17

On the first day of trial, before jury selection, defense counsel stated that he had just been notified by Ethington of four potential alibi witnesses. Counsel stated that he had not spoken with any of them and that Ethington had not provided him with their names or addresses or any other identifying information. The prosecutor argued that the alibi had not been previously disclosed as a defense as required by Ariz.R.Crim.P. 15.2B. Thus, the prosecution asked the trial court to preclude the alibi witnesses. Defense counsel suggested less severe sanctions. Defense counsel further stated that he had not been aware of these potential witnesses until a few moments before.

I. PRECLUSION OF THE ALIBI WITNESSES

18

The trial court precluded the defendant's use of an alibi. The court reasoned that counsel must have discussed possible defenses with Ethington and asked about alibis. The court found it incredible that Ethington would have waited until the day of trial to even mention the possibility of a bona fide alibi witness, especially in light of the clear rules which required disclosure 20 days after arraignment. Ethington protested that he had not been aware of the rule. The record contains no such protest by Ethington's lawyer.

19

Preclusion of an alibi witness can infringe a defendant's sixth amendment right of compulsory process to call witnesses in his favor. Taylor v. Illinois, 108 S.Ct. 646 (1988). In Taylor, the Court stated that the sixth amendment may be violated by precluding a material witness as a discovery sanction. Id. at 651-53. However, Taylor also holds that the sixth amendment does not create an absolute right to produce a defense witness after flagrant abuse of the court's rules. See id. at 653-56.

20

We need not, however, determine whether the trial court erred in this case by precluding Ethington's alibi defense, because we conclude that even if the trial court should have granted a continuance, the error was harmless beyond a reasonable doubt. See Fendler v. Goldsmith, 728 F.2d 1181, 1190 (9th Cir.1983) (remanding to determine whether preclusion was harmless beyond a reasonable doubt), cited with approval in Taylor, 108 S.Ct. at 655 n. 19.

21

Ethington's eleventh hour attempt to delay the trial by a sudden request for a mid-trial continuance so he could bring in an alibi underscores the specious nature of the claim. Ethington offered no names, no addresses, no hint of substantial evidence his purported alibi witnesses would produce. The court understandably was not impressed with the bona fides of the request.

22

Given the serious charge that Ethington faced, and the overwhelming evidence of his participation, it is hard to believe that he would not have mentioned valid alibi witnesses to his counsel. Ethington now argues that he did not disclose the witnesses because they feared police harassment. This argument fails to explain Ethington's failure at least to tell his counsel that he had a possible alibi defense.

23

Given the strength of the government's case and the implausibility of Ethington's last minute claim of alibi, we conclude that any error that may have been committed by the trial court was harmless beyond a reasonable doubt.

II. EVIDENTIARY HEARING

24

A habeas petitioner is entitled to an evidentiary hearing only when there remain unsettled factual issues which, if decided in the petitioner's favor, would entitle him to relief. See Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir.), cert. denied, 469 U.S. 838 (1984). Given the petitioner's total failure in any court to identify his purported witnesses and offer to prove what they would say, Ethington has not described a material factual issue entitling him to an evidentiary hearing in the district court.

III. THE EVIDENCE ON THE YATES COUNTS

25

A habeas court has no jurisdiction to set aside a state court conviction on other than federal constitutional error. 28 U.S.C. Sec. 2241(c)(3) (1982). See also McGee v. Eyman, 310 F.2d 230, 232 (9th Cir.1962). Ethington argues that the evidence was so insufficient on the Yates counts as to deny him due process, and further, that the use of circumstantial quasi-hearsay evidence denied him the right to confront his witnesses. These arguments are unpersuasive.

A. Sufficiency of the Evidence

26

The findings of the state court of appeals that the convictions were supported by sufficient evidence should be presumed correct by this court. 28 U.S.C. Sec. 2254(d) (1982); Crow v. Eyman, 459 F.2d 24, 25 (9th Cir.), cert. denied, 409 U.S. 867 (1972). Ethington bears the burden of proving that the record is so totally devoid of evidentiary support for the challenged convictions as to violate due process.

27

Randy Yates was the victim in counts IV, V and VI charging kidnapping, armed robbery and aggravated assault. Prior to trial, it was indicated that Yates might not appear. The court and prosecutor agreed that this would result in dismissal of the counts involving Yates. The prosecutor made significant efforts to have Yates appear. However, as explained above, Yates ultimately failed to appear. Yet, the court sent those charges to the jury nonetheless.

28

Ethington focuses his challenge on the evidence of Yates' subjective apprehension of harm and the evidence that Yates believed that he was not free to leave. The evidence came from Penn's testimony and was circumstantial. Penn testified that when his assailants were unable to extract the debt from Penn, they demanded to know whether someone else owed him money, and Penn named Yates. When Ethington, Ohta and Cunningham walked up to Yates' house, each carried a pistol. The three left Yates' house with Yates walking in front of them. Ethington and Ohta were pointing pistols at Yates, and Ethington carried a bundle of rifles. This is circumstantial evidence that Yates feared harm. After Yates arrived at the van, Ohta said, "We don't need Randy anymore, let him go," thereby suggesting that they had been holding and transporting Yates against his will. Ethington took a pair of binoculars out of Yates' car.

29

Under Arizona law, a conviction may be supported by purely circumstantial evidence. State v. Jensen, 106 Ariz. 421, 477 P.2d 252 (1970). Rules of evidence and procedure are traditionally matters of state law, and will be reviewed in a habeas action only to determine whether the petitioner's due process rights were violated. Bashor, 730 F.2d at 1238. Ethington has cited no authority which holds that the constitution is offended when a person is convicted by circumstantial evidence.

30

Ethington suggests that Yates may have known Penn's assailants, and that he may have been playing along, pretending to be a victim. While this may be true, the fact that the evidence may be subject to contrary influences does not mean that there was insufficient evidence to convict.

B. Use of quasi-hearsay conduct

31

Ethington also objects to the use of Penn's testimony as to Yates' nonverbal conduct as hearsay implicating his right of confrontation. The conduct--walking ahead of assailants wielding firearms--was not expressive. It merely raised the reasonable inference that Yates, flanked by the weapons, was acceding to the assailants' demands, express or implied, that he accompany them, and that he did so under a reasonable apprehension of harm. This was proper proof that Yates was taken against his will, and was not hearsay.1 Moreover, Penn was subject to cross-examination, and Ethington could point out that Penn had no way of knowing whether Yates was being held against his will or playing along as a co-conspirator. Ethington presented no evidence of a different interpretation of Yates' conduct.

32

Thus, we conclude that Ethington's right of confrontation was not violated.

IV. BAD ACTS EVIDENCE

33

Ethington claims that due process was violated when the state presented evidence of other "bad acts." Specifically, Ethington argues that evidence that he reached for a gun when arrested, that other weapons were found in his vehicle, and that Ohta shot Simpson's girlfriend, were irrelevant to the crimes charged and only sought to show that Ethington was a bad person, thus violating due process.

34

A federal habeas court lacks jurisdiction to set aside a state court conviction on other than federal constitutional error. 28 U.S.C. Sec. 2241(c)(3) (1982); McGee v. Eyman, 310 F.2d at 232. State court evidentiary rulings, even if erroneous, furnish no basis for federal habeas relief, unless they rendered the trial so unfair as to violate due process. Butcher v. Marquez, 758 F.2d 373, 378 (9th Cir.1985).

35

The state makes reasonable arguments that all the evidence objected to was relevant. Ethington stated that he was a strong-arm debt-collector. Much of the evidence tends to reinforce that self-description and disprove Ethington's claim that this statement was mere bravado. The discovery of weapons in Ethington's vehicle also was probative of identification; they tended to show that he was what he claimed to be. Ethington's attempt to reach for a gun when arrested was arguably an escape attempt which would suggest a guilty state of mind. Finally, Ohta's shooting of Simpson's girlfriend in the same house where Penn was being held tended to show the apprehension Penn felt, and thus demonstrated why Penn felt he could not escape. It also tended to prove that Ethington and Ohta were strong-arm debt collectors. Although much of this evidence may have been cumulative, the evidence was not so prejudicial when compared to its probative value that the trial was so unfair as to violate due process. See id.

36

V. THOMAS' ATTEMPT TO ESTABLISH ETHINGTON'S IDENTITY

37

Ethington argues that Thomas' initial questioning of him as to his identity was custodial interrogation and that he should have been warned of his Miranda rights. He argues that his response that his nickname was "Jack" was incriminating, and that all statements after being given his Miranda warnings were tainted by the initial questioning. See Wong Sun v. United States, 371 U.S. 471, 484-87 (1963). This claim is not persuasive.

38

In United States v. Perez, 776 F.2d 797, 798-99 (9th Cir.1985), the trial court had questioned the defendant as to whether the name in the indictment was his true name. The defendant said that it was not, and gave his real name. This court held that "[r]outine gathering of background biographical data does not constitute interrogation sufficient to trigger constitutional protections." Id. at 799. Thus, the court's questioning without informing the defendant of his Miranda rights was not error.

39

The appropriate inquiry is whether, in light of all the circumstances, the detective should have known that the question was reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 302-03 (1980); United States v. Booth, 669 F.2d 1231, 1238 (9th Cir.1981). Ethington argues that because he matched the description of the assailant in the Penn/Yates incident, and possessed guns which suggested that he might have been involved in this sort of crime, Thomas should have known that Ethington was a subject. Further, Ethington argues that Thomas was attempting to elicit the incriminating information that his name was "Jack." It is doubtful that an inquiry as to a person's name or identity can ever be interrogation within the holding of Miranda. See State v. Landrum, 112 Ariz. 555, 544 P.2d 664, 668 (1976). We are convinced that Thomas was not attempting to elicit incriminating information.

40

AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

1

Ethington concedes that the Federal Rules of Evidence define conduct not intended as an assertion as not hearsay. Fed.R.Evid. 801(a). See also Advisory Committee Note to Fed.R.Evid. 801(a)