Eckert v. Tansy
| Decision Date | 17 June 1991 |
| Docket Number | No. 89-16478,89-16478 |
| Citation | 936 F.2d 444 |
| Parties | Edward D. ECKERT, Petitioner-Appellant, v. Robert TANSY, Frankie Sue Del Papa and Ron Angelone, * Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David D. Nelson, Legal Intern, University of Idaho College of Law, Moscow, Idaho, for petitioner-appellant.
David Sarnowski and Karen M. Wright, Deputy Atty. Gen., Las Vegas, Nev., for respondents-appellees.
Appeal from the United States District Court for the District of Nevada.
Before TANG, SKOPIL and THOMPSON, Circuit Judges.
Edward D. Eckert, a state prisoner, appeals from the district court's denial of his habeas corpus petition filed under 28 U.S.C. Sec. 2254. Eckert contends the exclusion of alibi testimony during his state court trial violated his sixth amendment right to present a defense; that his trial counsel's failure to comply with Nevada's notice of alibi statute denied him effective assistance of counsel; and that the state court's imposition of two consecutive life sentences constitutes cruel and unusual punishment.
We have jurisdiction under 28 U.S.C. Secs. 1291 and 2253, and we affirm.
On June 7, 1976, the Royal Inn Casino in Las Vegas was robbed. Earlier that evening, Victor Trapani, a former employee of the casino, accompanied by a man disguised and armed with a gun, had entered the home of Michael Gaughan, owner of the casino. Upon learning that no one present in the home knew the combination to the casino's inner safe, the armed intruder ordered Gaughan's wife to telephone a casino employee and fabricate a reason for him to get over to the house quickly. Mrs. Gaughan called and two employees arrived soon after. While Trapani bound one of the employees, the armed intruder held his gun to the other's head and again demanded the safe's combination. Realizing the employees did not know the combination, the armed intruder ordered one of them to go with Trapani to the casino and bring back $125,000. The armed intruder threatened to kill the other victims if his orders were not carried out. Trapani and the employee went to the casino and returned with $53,000. The intruder took the money and left.
Eckert was later identified as the armed intruder. He was convicted by a jury of four counts of first-degree kidnapping, one count of robbery, and one count of extortion. A weapon enhancement charge was included in each count for use of a deadly weapon during the commission of the crimes. Eckert was given eight life sentences, six of which were suspended, and two fifteen-year sentences. He was also given two ten-year sentences, both of which were suspended. On the suspended sentences, Eckert was given five years probation to commence upon his release from prison. Each of the sentences was to run consecutively.
Eckert's trial lasted five days. On the fourth day, after the prosecution had rested, Eckert sought to present the testimony of what he claimed to be an alibi witness. The trial court refused to allow this testimony, because Eckert had not complied with Nevada's notice of alibi statute. The statute requires a criminal defendant planning to introduce alibi testimony to give the prosecution notice of the proposed testimony at least ten days before trial. 1
Preclusion of an alibi witness' testimony may be a permissible sanction for a discovery violation such as occurred in this case. Taylor v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 652, 98 L.Ed.2d 798 (1988). In Taylor, the Court stated that in making a determination as to whether a defendant's sixth amendment right to compulsory process was violated by the exclusion of alibi testimony, a court should balance a defendant's right to have witnesses testify in his or her behalf against "countervailing public interests." Id. at 414-15, 108 S.Ct. at 655-56. Such public interest considerations include "[t]he integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence; the interests in the fair and efficient administration of justice; and the potential prejudice to the truth determining function of the trial process...." Id. at 414-15, 108 S.Ct. at 655-56. 2 In addition, courts should consider the ease with which one can comply with the statute and whether failure to comply was willful and motivated by a desire to gain a tactical advantage at trial. Id. at 415, 108 S.Ct. at 655. The Court has also stated that the prosecution has an interest in "protecting itself against an eleventh hour defense." Taylor at 412, 108 S.Ct. at 654 (quoting Williams v. Florida, 399 U.S. 78, 81-82, 90 S.Ct. 1893, 1895-96, 26 L.Ed.2d 446 (1970)).
As we discuss in following Part B, the record shows Eckert dissuaded his attorney from giving the prosecution the required notice, because he wanted to contact the alibi witness himself. Not until the case was into its fourth day and the prosecution had rested, did the defense disclose the existence of the alibi witness. Then, when confronted with the violation of the notice of alibi statute, neither Eckert nor his attorney made any showing of cause for the failure to give the required notice. The trial court determined that to have permitted the testimony at that stage of the proceedings without compliance with the statute would have prejudiced the prosecution's case.
We conclude Eckert's constitutional rights were not violated by the state court's exclusion of the proffered alibi testimony. The notice of alibi statute could have been complied with by giving notice to the extent possible under the statute. See Nev.Rev.Stat. Sec. 174.087 (1989). Compliance with the statute is possible by giving "the names and addresses of the witnesses by whom [the defendant] proposes to establish [his] alibi" by providing that information "as particularly as [is] known to the defendant or his attorney." Id. Thus, an incomplete notice may be given if some of the required information is unknown. Id. Here, no notice was given. The failure to give the notice is traceable directly to Eckert's tactical choice. He didn't want the notice given until he had contacted the witness.
Eckert's omission was willful and motivated by a desire to obtain a tactical advantage. Ecker easily could have complied with the requirements of Nevada's notice of alibi statute. Under these circumstances, the integrity of the adversary process, the interests in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process all support the trial court's rejection of the proffered alibi testimony. See Taylor, 484 U.S. at 414-15, 108 S.Ct. at 655-56.
To establish ineffective assistance of counsel for purposes of a sixth amendment violation, a defendant must show he was denied "reasonably effective assistance," and as a result, he was prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Evans v. Lewis, 855 F.2d 631, 636 (9th Cir.1988). The correct standard applied to a counsel's performance is one of "objective reasonableness," considering the totality of the circumstances. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65.
Eckert's ineffective assistance of counsel claim is based on his trial counsel's failure to comply with Nevada's notice of alibi statute. Eckert contends he gave his counsel sufficient information to permit compliance with the statute, but his attorney simply failed to give the notice which would have permitted the alibi witness to testify. The record belies this assertion. Eckert did not want his counsel to give the prosecution a timely notice of alibi. Instead, he wanted to locate and talk to his alibi witness before she was questioned by anyone else.
At the outset of his representation, Eckert told his trial counsel that a person by the name of "Jan" could give him an alibi. Eckert said Jan could testify that he had been with her at the time of the crime. His counsel informed Eckert that a notice of alibi would have to be given to the prosecution. Eckert told his attorney he doubted an investigator could locate Jan, but that he would try to find her himself. He said he was concerned that if Jan learned investigators were searching for her, she would not come forward.
Eckert was arrested June 12, 1976. His trial began October 7, 1977. Two weeks before the trial was to begin, Eckert informed his attorney that Jan's name was "Janice Zureck" or "Janice Jureck." During the week before trial, Eckert told his counsel that someone at the prison might be able to locate Jan. His counsel's staff then turned up the correct name as "Janice Zureck," and the Friday before trial, or the day trial was to commence, Janice Zureck contacted Eckert's counsel. After the trial was in its fourth day and the government had rested, the defense offered Zureck as an alibi witness.
Although the failure to give the notice of alibi deprived Eckert of his alleged alibi witness, we conclude Eckert has failed to establish his claim of ineffective representation. His counsel's performance, in light of Eckert's own conduct, was not constitutionally deficient. 3
Eckert contends the imposition of two consecutive life sentences for first-degree kidnapping constitutes cruel and unusual punishment in violation of the eighth amendment. Eckert's second life sentence was imposed as a result of his use of a weapon to commit the kidnappings.
Nevada's weapon enhancement statute provides that anyone who uses a deadly weapon in the commission of a crime shall receive a state prison sentence "for a term equal to and in addition to the term of imprisonment prescribed by the statute for such crime." Nev.Rev.Stat. Sec. 193.165 (1989). Nevada's first-degree kidnapping statute permits a...
To continue reading
Request your trial
-
U.S. v. Hill
...100 S.Ct. 1747, 1752, 64 L.Ed.2d 381 (1980) (characterizing earlier version of § 924(c) as an "enhancement scheme"); Eckert v. Tansy, 936 F.2d 444, 449 (9th Cir.1991) (citing § 924(c) as example of "weapons enhancement scheme"); United States v. Henning, 906 F.2d 1392, 1399 (10th Cir.1990) ......
-
Tyson v. Trigg
...the case fit[ ] into the category of willful misconduct in which the severest sanction [was] appropriate." Id; see also Eckert v. Tansy, 936 F.2d 444 (9th Cir.1991); Chappee v. Vose, 843 F.2d 25 (1st The First Circuit has subsequently found constitutional error in a trial court's exclusion ......
-
Singh v. Martel
...and the sentence imposed leads to inference of gross disproportionality." Harmelin, 501 U.S. at 1005; see also Eckert v. Tansy, 936 F.2d 444, 448-50 (9th Cir. 1991) (two consecutive sentences for first degree kidnapping with use of a weapon found constitutionally permissible). No relief is ......
-
Fonseca v. Hall
...were marked by threats of violence although no physical harm was actually inflicted on the victims. See e.g., Eckert v. Tansy, 936 F.2d 444, 445, 448-50 (9th Cir.1991) (two consecutive life sentences for first-degree kidnapping is not cruel and unusual punishment where weapon was used to co......