926 F.2d 1554 (10th Cir. 1991), 89-2209, Tapia v. Tansy

Docket Nº:89-2209.
Citation:926 F.2d 1554
Party Name:Santiago TAPIA, Petitioner-Appellant, v. Robert TANSY, Respondent-Appellee.
Case Date:March 05, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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926 F.2d 1554 (10th Cir. 1991)

Santiago TAPIA, Petitioner-Appellant,


Robert TANSY, Respondent-Appellee.

No. 89-2209.

United States Court of Appeals, Tenth Circuit

March 5, 1991

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Tova Indritz, Federal Public Defender (Teresa E. Storch, Asst. Federal Public Defender, on the briefs), Albuquerque, N.M., for petitioner-appellant.

Anthony Tupler, Asst. Atty. Gen. (Hal Stratton, Atty. Gen., with him on the brief), Santa Fe, N.M., for respondent-appellee.

Before LOGAN, ANDERSON and EBEL, Circuit Judges.


Santiago "Jimmy" Tapia ("Jimmy" or "Tapia") was convicted in New Mexico state court of second degree murder in the death of Jeffrey Stevers and aggravated battery of Sergio de la Rosa. After exhausting his appeals in state court with respect to issues raised here, Tapia filed for habeas relief in federal court pursuant to 28 U.S.C. Sec. 2254, contending that: (1) the loss of the original preliminary hearing tapes violated his Sixth Amendment right to confrontation by depriving him of material information necessary to effectively cross-examine witnesses, and the court's failure to arraign him after the second preliminary hearing denied him due process; (2) the trial court's sealing of the police chief's affidavit denied Tapia his Sixth Amendment right to confront and cross-examine the witness against him; (3) the submission of a second degree murder instruction on an accessory theory denied him due process and a fair trial; (4) the admission of allegedly perjured testimony deprived him of due process and a fair trial; and, (5) ineffective assistance of counsel in

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pursuing his direct appeal denied him his Sixth Amendment right to counsel.

Upon review of the briefs, the magistrate submitted his proposed findings on Tapia's contentions to the district court and recommended that Tapia's petition be dismissed with prejudice. The district court, after a de novo review, adopted the magistrate's findings and recommended disposition and, accordingly, dismissed the petition with prejudice. On appeal, Tapia reasserts his claims raised below. We affirm. 1


The key witnesses against Tapia were Sergio de la Rosa and Pam Carrillo. Both witnesses gave different accounts of the relevant evening's events to the police, at the two preliminary hearings, and at trial. However, the basic facts as presented at trial are as follows: A group of people were at Jeffrey Stevers's house the night of September 7, including Jeffrey Stevers, Robert and Pam Carrillo, Sergio de la Rosa, Boo Boo and Julio Visarraga, and Mike Lucero. Many had been drinking and sniffing paint. Jimmy and his brother, Eddie Tapia, came to the house later that evening. When Stevers left the house for a short time to buy some beer, Jimmy and de la Rosa began to fight. In the altercation, de la Rosa suffered a knife wound. Pam Carrillo testified that she saw both the Tapia brothers with a knife. She testified first that Jimmy alone stabbed de la Rosa, but she later stated that Eddie had also stabbed de la Rosa. De la Rosa testified that only Jimmy had stabbed him and that he never saw Eddie with a knife.

Upon Stevers's return, he and Jimmy went outside. Carrillo testified that the two went out alone and that Eddie Tapia remained inside. De la Rosa stated that when Stevers returned he told everyone to leave. De la Rosa was leaving through a bathroom window when he heard people talking outside the house and heard Jimmy say "dejame matarlo" (let me kill him). When Stevers re-entered the house, he collapsed with a fatal stab wound.

On the first day of trial, de la Rosa testified that Detective Sergeant Ramiro Flores, the officer investigating the murder, promised to release him on other pending charges if he would testify (presumably against Jimmy) in court. He stated that Flores questioned him in the hospital, tape-recording only specific portions of de la Rosa's statements, and told de la Rosa to state that he heard Jimmy say "dejame matarlo." Flores allegedly also told de la Rosa that if he did not give a taped statement he would be charged with the murder. On the second day of trial, the prosecution recalled de la Rosa to the stand. De la Rosa recanted his original testimony and admitted to perjuring himself because of threats of harm to his family. He then denied that Flores selectively recorded his hospital statements and prompted his answers. He testified that he did actually hear Jimmy say "dejame matarlo."

Carrillo testified that she accepted $40 from Flores the day after the preliminary hearing and that Flores told her he needed her testimony. Boo Boo Visarraga admitted to accepting $30 from Flores. His brother, Julio Visarraga, testified that Flores offered him money to lie and say that Jimmy was at Stevers's house that night. Julio rejected the offer. Although the amount is disputed, Flores admitted he gave money to Carrillo and Boo Boo, but claimed that he did so for humanitarian reasons.

Tapia went to trial under an amended criminal information charging him with second degree murder as a principal in violation of N.M.Stat.Ann. Sec. 30-2-1(B) (1978), and with aggravated battery in violation of N.M.Stat.Ann. Sec. 30-3-5(C) (1978). The jury found him guilty on both counts and he was sentenced to 13 years imprisonment.

Our review of a petition for a writ of habeas corpus is confined to alleged denials of federal constitutional rights.

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Brinlee v. Crisp, 608 F.2d 839, 843 (10th Cir.1979), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980). With respect to claims asserting a denial of due process, we will not question the evidentiary or procedural rulings of the state court unless Tapia can show that, because of the court's actions, his trial, as a whole, was rendered fundamentally unfair. Nichols v. Sullivan, 867 F.2d 1250, 1253 (10th Cir.), cert. denied, 490 U.S. 1112, 109 S.Ct. 3169, 104 L.Ed.2d 1031 (1989). With respect to Tapia's various Sixth Amendment claims, we review ultimate legal conclusions de novo. Laycock v. State of New Mexico, 880 F.2d 1184, 1187 (10th Cir.1989) (ineffective assistance of counsel); Nichols v. Sullivan, 867 F.2d at 1253 (citing Taylor v. Lombard, 606 F.2d 371, 375 (2d Cir.1979) (addresses alleged prosecutorial use of perjured testimony), cert. denied, 445 U.S. 946, 100 S.Ct. 1346, 63 L.Ed.2d 781 (1980)); Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050, 1055 (6th Cir.1983) (right to confrontation), cert. denied, 464 U.S. 1071, 104 S.Ct. 980, 79 L.Ed.2d 217 (1984); see Browning v. Foltz, 837 F.2d 276, 280-81 (6th Cir.1988) (notice of charges), cert. denied, 488 U.S. 1018, 109 S.Ct. 816, 102 L.Ed.2d 805 (1989). Underlying findings of fact are accorded a presumption of correctness. 28 U.S.C. Sec. 2254(d); Case v. Mondragon, 887 F.2d 1388 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1490, 108 L.Ed.2d 626 (1990).




Through inadvertence, the original preliminary hearing tapes were lost and the district court held a second preliminary hearing. Tapia claims that, since he did not have access to the tapes of the first preliminary hearing, he was deprived of a source of material information necessary for effectively cross-examining and impeaching the testimony of de la Rosa, thus violating his Sixth Amendment right to confrontation. Because of that alleged violation, he contends that the trial court was required to dismiss the case against him. We disagree.

"The Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination." Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40 (1987); see also United States v. Lane, 883 F.2d 1484, 1502 (10th Cir.1989) (citing Davis v. Alaska, 415 U.S. 308, 315-17, 94 S.Ct. 1105, 1109-1111, 39 L.Ed.2d 347 (1974)), cert. denied, --- U.S. ----, 110 S.Ct. 872, 107 L.Ed.2d 956 (1990). However, "the Confrontation Clause only guarantees 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' " Pennsylvania v. Ritchie, 480 U.S. at 53, 107 S.Ct. at 999 (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294-95, 88 L.Ed.2d 15 (1985) (per curiam)) (emphasis omitted). A defendant has engaged in effective cross-examination if "the jury had sufficient information to make a discriminating appraisal" of the relevant issue. United States v. Larranaga, 787 F.2d 489, 498 (10th Cir.1986) (quoting United States v. Swingler, 758 F.2d 477, 498 (10th Cir.1985)).

Defense counsel extensively examined de la Rosa and thoroughly impeached him with his many prior inconsistent statements, some of which were made during trial before the jury. The trial court did not restrict Tapia's cross-examination of de la Rosa in any way. Tapia's questioning was limited only by the unavailability of the information contained in the preliminary hearing tapes. It is wholly speculative whether the missing tapes would have provided more material for impeachment, but even if they had, additional impeachment would merely have been cumulative. The jury had sufficient information to determine de la Rosa's credibility.

The situation is not unlike that in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). In that case, the defendant argued that he could not effectively

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question his daughter, the victim of his alleged sexual assaults, without access to the records of the Children and Youth Services ("CYS"). Under Pennsylvania law, information obtained in the course of a CYS investigation is confidential. Like Tapia in...

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