Nieto v. Sullivan

• Decision Date: 26 June 1989
• Docket Number: No. 87-1981,87-1981
• Citation: 879 F.2d 743
• Parties: Gilbert NIETO, Petitioner-Appellant, v. George SULLIVAN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 743

879 F.2d 743

Gilbert NIETO, Petitioner-Appellant, v. George SULLIVAN, Respondent-Appellee.

No. 87-1981.

United States Court of Appeals, Tenth Circuit.

June 26, 1989.

Peter Schoenburg, Asst. Federal Public Defender, Albuquerque, N.M., for petitioner-appellant.

William McEuen, Asst. Atty. Gen., Santa Fe, N.M. (Hal Stratton, Atty. Gen., Santa Fe, N.M., was also on the brief) for respondent-appellee.

Before HOLLOWAY, Chief Judge, and SEYMOUR and EBEL, Circuit Judges.

HOLLOWAY, Chief Judge.

Petitioner-appellant Gilbert Nieto appeals from the district court's order dismissing his petition for a writ of habeas corpus and

adopting the findings and recommendations of the Magistrate. Petitioner was convicted in a New Mexico state district court, following a jury trial, of the assault, battery and armed robbery of Francisco Rodriguez. We affirm.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

On the night of January 13, 1983, Francisco Rodriguez and his cousin, Mauricio Carreon, were playing video games at a local 7-Eleven store in Albuquerque. As the two left the store, they were abducted by three men and forced into Rodriguez' truck. Rodriguez was directed to drive to an area near the Rio Grande River, while two of the attackers pointed weapons at him.

Upon their arrival at the river bank, the three men took Rodriguez' money, class ring, Levi jacket and watch. Rodriguez and Carreon were ordered to lie down in the dirt while the three attempted to start the truck and leave. During this time, Rodriguez and Carreon jumped up and fled. Both Rodriguez and Carreon notified the police of the incident that evening and gave Albuquerque Police Officer, Jean Kurdoch, descriptions of the three assailants. Rodriguez told Officer Kurdoch that one of the attackers was a Hispanic male approximately 30 years old, with a playboy bunny tattooed on his neck and tattoos of women on his right forearm.

Officer Kurdoch, relying on Rodriguez's description of the attacker with a playboy bunny on his neck, compiled a photo array from the identification bureau of the Albuquerque Police Department. This array included a picture of Nieto, as well as one other Hispanic male with a playboy bunny tattoo on his neck. When Rodriguez was presented with the photo array approximately two months after the incident, he identified Nieto as the oldest of the three attackers.

At trial, the state's case consisted of only the testimony of Officer Kurdoch and Rodriguez. Neither the State nor the defense called Carreon as a witness. Nieto himself was the only defense witness. He testified that he did not know where he was on the day or night of January 13, 1983. He further testified that he was arrested on February 22, on a state charge of breaking and entering. ¹ Nieto also showed his tattoos located on his neck and right forearm to the jury. The jury returned a verdict of guilty on all counts.

In Nieto's direct appeal to the New Mexico Court of Appeals, the following issues were raised: (1) whether the prosecutor's references to matters not introduced in evidence and to Nieto's mug shot denied Nieto his right to due process and a fair trial; (2) whether the closure of the courtroom during Rodriguez's testimony denied Nieto's right to a public trial. The Court of Appeals affirmed and the New Mexico Supreme Court denied certiorari.

II. ANALYSIS

Nieto asserts in his petition for habeas relief that he was denied a fair trial as a result of the State's references to his mugshot and incarceration, to a non-testifying witness, and to a psychological phenomenon called "object focus." He also contends that his right to a public trial was violated when the trial court closed the courtroom during the testimony of Rodriguez. The State responds that two of these issues have been procedurally waived, thus barring federal court consideration of these issues. Furthermore, the State argues even if the issues presented by Nieto are not barred, they are meritless.

A. PROCEDURAL DEFAULT AND WAIVER

The State relies on Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), and argues that Nieto has procedurally defaulted and waived any claims of error as to references made by the prosecutor during the trial to Nieto's mug shots and incarceration. The State asserts that Nieto procedurally defaulted and waived any right to claim error as to the prosecutor's references to the phenomenon called "object focus." We agree that the claim relating to references to Nieto's prior incarceration was waived; we hold, however, that the claims relating to references to mug shots and "object focus" were preserved by Nieto.

The Engle case is inapposite. There the issue was whether the petitioners could proceed with their federal habeas proceeding when they failed to raise and preserve their constitutional issue in the state courts by compliance with a state procedural rule for contemporaneous objections to jury instructions. Id. at 124-125, 102 S.Ct. at 1570. Here the State relies on Engle to argue that Nieto failed to preserve the issues for federal habeas review by failing to assert contemporaneous objections during his trial. The New Mexico Court of Appeals, however, clearly addressed the merits of the constitutional issues concerning the references to Nieto's mug shot and "object focus." ² I R. doc. 11, exh. "A", pp. 9-11. Thus, unlike the petitioners in Engle, Nieto is not barred from obtaining federal habeas review of the issues concerning the mug shot testimony and the prosecution's statements concerning "object focus" phenomenon.

On the other hand, the New Mexico Court of Appeals clearly stated that any error regarding the prosecutor's reference to Nieto's incarceration was not preserved for review. I R. doc. 11, exh. "A", p. 10. Nieto has not offered any explanation for his counsel's failure to object to the State's reference to his incarceration. In fact, Nieto testified that he was incarcerated at the time of his trial and his counsel mentioned this fact during closing argument. Nieto has failed to show cause for the default and any actual prejudice from the alleged error. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); See also United States v. Hay, 527 F.2d 990, 997 (10th Cir.1975) ("[a]ny error in admitting evidence is cured by the defendant's admission concerning the same facts"). Therefore, this issue is not subject to review through federal habeas proceedings. Harris v. Reed, 109 S.Ct. at 1042-44.

B. MUG SHOT TESTIMONY

Nieto argues that Officer Kurdoch's references to his mug shot during her testimony on direct examination is "prejudicial on its face." Appellant's Brief at p. 10. Officer Kurdoch testified that mug shots are made of people who are arrested. Therefore, prejudice to Nieto arose from the jury's consequent awareness of his prior arrest and possible past convictions.

However, in light of Nieto's own testimony that he had been previously arrested and was presently incarcerated, and his counsel's references to his prior arrest and mug shot during closing argument, we cannot agree that Neito was denied a fair trial or prejudiced by the officer's mug shot testimony. See Tapia v. Rodriguez, 446 F.2d 410, 413-16 (10th Cir.1971) (defendant's counsel's failure to object to testimony and references to a "mug book" did not constitute ineffective assistance of counsel nor constitute fundamental error). Fish v. Cardwell, 523 F.2d 976, 977-78 (9th Cir.1975), cert. denied, 423 U.S. 1062, 96 S.Ct. 801, 46 L.Ed.2d 654 (1976) (reference to defendant's mug shot is not prejudicial error where defendant's own counsel elicited the statements).

C. "OBJECT FOCUS" REFERENCE

Next, Nieto asserts the prosecutor's statements during closing about a psychological phenomenon called "object focus" deprived him of due process. Specifically, Nieto argues the State's reference to "object focus" was not supported by any evidence and was used to improperly distract from Rodriguez' incorrect or incomplete discriptions of tattoos worn by his attacker. The State responds that Nieto's failure to object at trial constituted procedural default. ³ In addition, the State argues that Nieto's counsel disavowed any belief that an error was committed by his statements during closing that he had no objection to the "object focus" references and sought to use the phenomenon to Nieto's advantage.

It is generally accepted that counsel during closing must confine their argument to admitted facts in evidence. However, to infer that the State's reference to "object focus" was improper does not necessarily establish that the reference itself deprived Nieto of due process. For an improper remark to cause reversal, it must also be prejudicial; infringement of due process by such conduct must involve unfairness in the trial.

Because Nieto's counsel disavowed any objection to the "object focus" phenomenon during his closing, and in fact used the phenomenon to Nieto's own advantage, it would be difficult for us to find that the State's reference was prejudicial. Cf. Mason v. United States, 719 F.2d 1485, 1489 (10th Cir.1983) (failure of defendant's counsel to object during closing tends to indicate there was not a serious objection to the argument). Just as a defendant cannot complain of any error he invites upon himself, United States v. Hooks, 780 F.2d 1526, 1535 (10th Cir.1986), he cannot take advantage of an alleged error brought on by the State during trial and then later complain about it in a habeas proceeding. Review of the record convinces us that Nieto was not prejudiced or denied a fair trial by its use. There is no showing by Nieto that he was prejudiced by the State's reference to "object focus" during the closing argument. See Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974).

D. REFERENCES TO MAURICIO CARREON

Another alleged victim of the January 1983 incident, Mauricio Carreon, was referred to often by the...