Bustamante v. Cardwell

• Decision Date: 13 May 1974
• Docket Number: No. 73-1823.,73-1823.
• Citation: 497 F.2d 556
• Parties: Pedro Rodriquez BUSTAMANTE, Appellant, v. Harold J. CARDWELL [Frank A. Eyman], Warden, Arizona State Prison, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

497 F.2d 556 (1974)

Pedro Rodriquez BUSTAMANTE, Appellant, v. Harold J. CARDWELL Frank A. Eyman, Warden, Arizona State Prison, Appellee.

No. 73-1823.

United States Court of Appeals, Ninth Circuit.

May 13, 1974.

Robert J. Corcoran (argued), LeRoy L. Miller, Powers, Boutell, Fannin & Kurn, Phoenix, Ariz., for appellant.

William J. Schafer, Asst. Atty. Gen. (argued), Ronald L. Crimson, Asst. Atty. Gen., Gary K. Nelson, Atty. Gen., Phoenix, Ariz., for appellee.

Before BROWNING and GOODWIN, Circuit Judges, and KING,^* District Judge.

OPINION

PER CURIAM:

Pedro Rodriquez Bustamante appeals from an order denying his petition for a writ of habeas corpus. He challenges the district court ruling that, although his absence from the courtroom at the time a tape recording of instructions was replayed to the jury constituted error, the error was harmless beyond a reasonable doubt. We affirm.

Bustamante's conviction for first-degree murder was affirmed by the Supreme Court of Arizona in 1968. State v. Bustamante, 103 Ariz. 551, 447 P.2d 243 (1968). Subsequently, he filed a petition for a writ of habeas corpus in federal district court in Arizona, contending that he had been denied due process of law when the jury was reinstructed at its request during deliberation, in his absence and without his knowledge.

The district court denied his petition, but this court reversed on the ground that the procedure was unconstitutional and remanded for a finding on the issue of prejudicial error. Bustamante v. Eyman, 456 F.2d 269 (9th Cir. 1972).

On remand the district court soon learned that no transcript had been taken at the playing of the tape-recorded instructions. Arguing that our earlier decision required the state to produce a transcript for inspection by the district court, Bustamante contends that the absence of a transcript automatically requires his discharge. We disagree. Although our earlier opinion apparently assumed that a transcript of the reinstruction of the jury would be available, we do not read that opinion to require Bustamante's release in the event that no such transcript could be produced.

Unable to rely upon a transcript to establish harmless error, the state requested the district court to conduct an evidentiary hearing. At the resultant hearing the state called as witnesses Bustamante's defense attorney and the prosecutor at the original murder trial. The state also submitted a stipulation on the testimony of the presiding judge if he were called. Bustamante's ex-attorney testified that the original instructions were played back in their entirety, that the jury could hear them, that all members of the jury were present, that the judge made no comments to the jury other than remarks such as "be seated" or "go back to your deliberations," and that the bailiffs, clerks, and attorneys said nothing at all. The prosecutor's memory of the proceedings was not as clear, but his testimony was consistent with that of the defense attorney. The judge who was filling in for the trial judge that evening, and who had no other connection with the case, stated only that he had no independent recollection of having presided at the reinstruction.

Based upon the record produced at this hearing, the district court was convinced beyond a reasonable doubt that Bustamante's absence from the courtroom was a harmless oversight. We agree. The state has met its burden of showing that nothing prejudicial to the defendant occurred. See generally United States v. Arriagada, 451 F.2d 487, 488 (4th Cir. 1971), cert. denied, 405 U.S. 1018, 92 S.Ct. 1300, 31 L.Ed.2d 481 (1972); Ware v. United States, 376 F.2d 717 (7th Cir. 1967); Walker v. United States, 116 U.S.App.D.C. 221, 322 F.2d 434 (1963), cert. denied, 375 U.S. 976, 84 S.Ct. 494, 11 L.Ed.2d 421 (1964); Bacino v. United States, 316 F.2d 11, 14 (10th Cir.), cert. denied, 375 U.S. 831, 84 S.Ct. 76, 11 L.Ed.2d 62 (1963); Outlaw v. United States, 81 F. 2d 805, 809 (5th Cir.), cert. denied, 298 U.S. 665, 56 S.Ct. 747, 80 L.Ed. 1389 (1936).

We now turn to the other issues raised by Bustamante's petition. First, he contends that the State of Arizona denied him due process of law by holding that in going forward and producing evidence he had waived his...