Bustillos v. Shinn

• Docket Number: CV 21-00336 PHX JJT (CDB)
• Decision Date: 28 September 2021
• Parties: Manuel Bustillos, Petitioner, v. David Shinn, Attorney General of the State of Arizona, Respondents.
• Court: U.S. District Court — District of Arizona

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Manuel Bustillos, Petitioner, v. David Shinn, Attorney General of the State of Arizona, Respondents.

No. CV 21-00336 PHX JJT (CDB)

United States District Court, D. Arizona

September 28, 2021

REPORT AND RECOMMENDATION

Camille D. Bibles United States Magistrate Judge

Petitioner Manuel Bustillos seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition Bustillos challenges his conviction on several offenses relating to molestation of his minor daughter, resulting in an aggregate sentence of eighty years' imprisonment. Respondents have answered the petition (ECF No. 9) and the deadline for filing a reply expired May 7, 2021.

I. Background

The following background is taken from the Arizona Court of Appeals' decision denying Bustillos' appeal:

Bustillos began sexually abusing D.B., his oldest daughter when she was about 10 years old. On one such occasion Bustillos took D.B. alone into a bedroom and placed his mouth on her vagina. The sexual contact was interrupted when D.B.'s brother briefly opened the door. After each occurrence of abuse, Bustillos told D.B. to not tell anyone because she would be in trouble. On at least one occasion, D.B. also noticed Bustillos looking at her through her bedroom window.

In the summer of 2013 (when D.B. was 15 years old), after she had learned about sexual assault through a school program and noticed that Bustillos began to look at and treat her younger sister, N.B., the same way he treated her, D.B. called the police. When the police arrived, they interviewed D.B. and N.B., as well as their brother and mother. Police also interviewed Bustillos, who denied having sexual intercourse with D.B., but admitted that he touched her breasts once and her vagina twice when she was 13 years old. Relating to misconduct with D.B., the State charged Bustillos with four counts of sexual conduct with a minor, one count of molestation of a child, and one count of public sexual indecency. Regarding N.B., the State charged Bustillos with one count of molestation of a child.^[1]

State v. Bustillos, 2017 WL 2871572, at *1-3 (Ariz.Ct.App. July 6, 2017).

Prior to trial, Bustillos' counsel moved for a Rule 11 evaluation, and Bustillos was found incompetent but restorable. Bustillos participated in the Maricopa County Correctional Health Services Restoration to Competency Program (“RTC”) and was later found competent, based upon counsel's stipulation to the report of Dr. Freitas. (ECF No. 9-1 at 93) (in some places in the record the physician's name is improperly spelled “Fritas”).

Approximately one week before trial, the State moved to admit evidence of other acts under Arizona Rule of Evidence (“Rule”) 404(b) and (c). The State sought to admit evidence of a police interview of Bustillos's son received the day before, in which the son alleged that more than five years earlier, he walked into his parents' room to find D.B. alone with Bustillos, who was bent down, pulling the elastic band of the front of her shorts outward, and “looking down” in her shorts. Bustillos's son described what he saw, including the shorts D.B. was wearing, where the two were standing in relation to the bedroom door, and that Bustillos looked up at him when he opened the door.

The son also stated that he saw Bustillos look through D.B.'s bathroom window while she showered “plenty of times” and that he saw Bustillos looking through D.B.'s bedroom window many times as well. He knew D.B. was in the bathroom when Bustillos watched through the window because the son would go inside and knock on the door to see who was in there. The son explained that Bustillos would do this by standing on a brick outside the windows. The son denied having seen Bustillos do anything to his other sister, though. When asked by the interviewing detectives why he was only now disclosing this information, the son responded that he was tired of holding it in.

This evidence, the State argued, showed Bustillos's aberrant sexual propensity. The State argued that the evidence was admissible under Rule 404(c) because the other acts had an evidentiary value that outweighed the danger of unfair prejudice, they occurred in the proximate time of the charged offenses, and were similar to the charged offenses. The State also argued that the other acts evidence was admissible under Rule 404(b) as evidence of absence of mistake or accident.

In response, Bustillos requested to interview his son, as well as his wife and daughter, N.B., to corroborate the reliability of the son's allegations. He also requested an evidentiary hearing to determine the reliability of the three witnesses. Bustillos argued that the nature of the interview was not one that implicated victim's rights protections, but instead was for an evidentiary hearing to determine the credibility and reliability of the proffered evidence. Because evidence cannot be introduced under Rule 404 unless clear and convincing, Bustillos argued, he had a right to subpoena witnesses who do not have the right to refuse, and that not being permitted to conduct those interviews would prejudice him.

The State objected, arguing that as victims (or the victims' guardian), neither Bustillo's wife nor N.B. had to consent to an interview, and that Bustillos's request was an attempt to obtain information irrelevant to the Rule 404 motion and in violation of victims' rights laws. The State also argued that only it carried the burden of proof to prevail on its motion, not the defendant. Because the State believed the son's interview to be “self-explanatory, ” it intended to introduce only the interview and previously admitted evidence for the court's consideration. Therefore, the State explained, it did not intend to call any witnesses to testify regarding the motion, so Bustillos had no right to call witnesses. The State agreed, however, to make the son available for an interview if needed.

Initially, the court agreed that while the witnesses could refuse an interview with Bustillos relating to the Rule 404 hearing, Bustillos could subpoena them and call them as witnesses. Nevertheless, the trial court instructed that if Bustillos interviewed his son and afterward felt that he needed additional information, he could make the request again. The court did not make a ruling on the motion at that time, however, accepting the State's request that it first read State v. LeBrun, 222 Ariz. 183 (App. 2009), for the proposition that neither live testimony or an evidentiary hearing is required.

After taking the matter under advisement, the trial court denied Bustillos's request for interviews of his wife and N.B. and an evidentiary hearing. The court ruled that Rule 404 required the State to present sufficient evidence “from which the court could determine that a jury would be able to make a finding of clear and convincing evidence that the alleged incidents occurred.” Because of the nature of the State's burden, the court concluded that “this is not an opportunity for the defense to cross-examine the State's evidence or to present contrary evidence. I simply need to make the threshold finding …” Bustillos, however, did interview his son for purposes of the Rule 404 motion.

At the subsequent oral argument on the motion during the first day of trial, the State argued that each of the three necessary elements under Rule 404(c) were met. Bustillos argued that the proffered evidence was not reliable because the son had previously denied any allegation that Bustillos had done anything wrong, and only now, after living with his mother, D.B., and N.B., felt pressured to state otherwise. Bustillos also argued that his son's statement that he walked in on Bustillos pulling D.B.'s pants outward was inconsistent with D.B.'s recounting of the incident. The trial court noted it intended to rule on the motion the next morning, and in the meantime the court would listen to the interview recordings of the son's interview with the police detectives as well as defense counsel's interview of the son.

Before trial the next day, the court explained that although it had listened to the son's interview with the detectives and read transcripts of Bustillos's, N.B.'s, and D.B.'s interviews, it had not yet had the opportunity to finish listening to the son's interview conducted by defense counsel. Without objection from either party, the court started the trial and heard testimony from D.B. After she testified, the court determined that the other acts were admissible under Rule 404(c), explaining as follows: (1) based on the son's statements, “clear and convincing evidence from which the jury could determine that each of these acts were committed” existed; (2) each of the acts “indicate an [aberrant] sexual propensity;” and (3) admission of the other acts evidence would not be unduly prejudicial because they were contemporaneous and involved the same victim. Additionally, the court considered that Bustillos had admitted to committing several sexual acts against the victim. The trial court also found that the statements were admissible under Rule 404(b) to prove motive, intent, and lack of mistake.

After a 16-day trial, the jury convicted Bustillos of each charged offense and found that each count of sexual conduct with a minor occurred when D.B. was under 15 years old. The trial court then sentenced Bustillos to the presumptive terms for each conviction.

Bustillos, 2017 WL 2871572, at *1-3.

Bustillos appealed, asserting the following claims:

1. The “trial court applied the incorrect standard of proof in determining whether to admit the son's interview under Rule 404(b) and (c).” Id., 2017 WL 2871572 at *3.

2. The trial court improperly failed to remove a juror for cause. Id., 2017 WL 2871572 at *5.

3. The trial court “‘improperly refused to

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