Robbins v. Cardwell, 79-2518

• Decision Date: 09 May 1980
• Docket Number: No. 79-2518,79-2518
• Citation: 618 F.2d 581
• Parties: Lonnie Lee ROBBINS, Petitioner-Appellant, v. Harold J. CARDWELL, Warden, Arizona State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 581

618 F.2d 581

Lonnie Lee ROBBINS, Petitioner-Appellant, v. Harold J. CARDWELL, Warden, Arizona State Prison, Respondent-Appellee.

No. 79-2518.

United States Court of Appeals Ninth Circuit.

May 9, 1980.

Terry J. Adams, Phoenix, Ariz., for petitioner-appellant.

Gerald R. Grant, Asst. Atty. Gen., Phoenix, Ariz., for respondent-appellee.

Appeal from the United States District Court for the District of Arizona.

Before KENNEDY and FLETCHER, Circuit Judges, and THOMPSON, ^* District Judge.

KENNEDY, Circuit Judge:

Arizona permits imposition of sanctions on a criminal defendant for failure to comply with rules requiring notice to the prosecution of certain defenses and the names of witnesses. See Ariz.R.Crim.P. 15.7. ¹ The more extreme sanctions include striking a defense and prohibiting testimony by a defense witness or the accused himself. See Ariz.R.Crim.P. 15.7(a)(4). The issue whether these sanctions can be applied for breach of Ariz.R.Crim.P. 15.2 without offending the confrontation clause of the sixth amendment and the right to present a defense which is implicit in the sixth amendment is a constitutional question of importance to the administration of criminal justice. This question was expressly reserved by the Supreme Court in Wardius v. Oregon, 412 U.S. 470, 472 n.4, 93 S.Ct. 2208, 2211, 37 L.Ed.2d 82 (1973). See Note, The Preclusion Sanction A Violation of the Constitutional Right to Present a Defense, 81 Yale L.J. 1342 (1972). We reject the argument that this issue is presented for our determination on the record in this case.

On this appeal from denial of habeas corpus relief, appellant contends his Arizona rape conviction under Ariz.Rev.Stat. §§ 13-611, 13-614 was improper because the state trial court entered an order prohibiting testimony by a witness in support of a defense based on consent. The defendant had not given timely notice either of the defense or the name of the witness as required by Ariz.R.Crim.P. 15.2(b). ² The defense stated that the witness would testify that the defendant and the victim had conversed together in a bar on various occasions before the night when the rape occurred and that the victim had been attracted to the defendant.

Subsequent proceedings in the case were such that the ruling which prohibited calling the witness was irrelevant to any rights the defendant sought to exercise. To begin with, the appellant argues that the purpose of the testimony would have been to corroborate the testimony which would have been given by the defendant. After the ruling in question, however, the defendant waived jury trial and waived the right to testify himself. He allowed the question of his guilt or innocence to be determined based on the testimony given at the preliminary hearing. In these circumstances the preclusion of the witness' testimony had no effect on the course of the proceedings or the outcome of the case. ³ The defendant does not contend on appeal that the decision to waive trial was affected by the ruling and any such claim would be blunted by: (1) the absence of a showing that the witness was available; (2) the fact that the defense counsel himself suggested that prohibition of the witness' testimony was an appropriate sanction; (3) the fact that there was an interval of five days from the date of the ruling until commencement of trial during which defense counsel made no effort to locate or interview the witness in order to bolster the claim that the testimony would be helpful; and (4) the fact that the testimony, even if it could have been produced, in large part would have reiterated what the victim herself had already acknowledged at the preliminary hearing.

The claim that the defendant was chilled in the exercise of his fifth amendment rights by discussion of contempt sanctions were he to testify himself is unavailing in view of the defendant's subsequent and explicit waiver of the right to testify. The court closely questioned the defendant to determine that the waiver was knowing and voluntary before accepting the stipulation to try the case on the record of the preliminary examination. Cf. United States v. Cook, 608 F.2d 1175, 1186 (9th Cir. 1979) (en banc), cert. denied, --- U.S. ----, 100...