Shuman v. Wolff

• Citation: 791 F.2d 788
• Decision Date: 12 June 1986
• Docket Number: 83-2459,Nos. 83-2392,s. 83-2392
• Parties: 21 Fed. R. Evid. Serv. 55 Raymond Wallace SHUMAN, Petitioner-Appellee/Cross-Appellant. v. Charles L. WOLFF, Jr., Director, Nevada State Prison, et al., Respondents-Appellants/Cross-Appellees,
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 788

791 F.2d 788

21 Fed. R. Evid. Serv. 55

Raymond Wallace SHUMAN, Petitioner-Appellee/Cross-Appellant. v. Charles L. WOLFF, Jr., Director, Nevada State Prison, et

al., Respondents-Appellants/Cross-Appellees,

Nos. 83-2392, 83-2459.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 15, 1985.

Decided June 12, 1986.

N. Patrick Flanagan, III, Asst. Federal Public Defender, Reno, Nev., Martin R. Boyers, Las Vegas, Nev., for petitioner-appellee/cross-appellant.

Brooke A. Nielsen, Deputy Atty. Gen., Carson City, Nev., for respondents-appellants/cross-appellees.

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

Before DUNIWAY, HUG, and SKOPIL, Circuit Judges.

HUG, Circuit Judge:

This appeal and cross-appeal concern the district court's rulings on a petition filed under 28 U.S.C. Sec. 2254 pertaining to two convictions for murder. 571 F.Supp. 213. There are two principal issues. The first concerns the validity of a 1958 conviction of murder that resulted in a sentence of life imprisonment without the possibility of parole. Shuman contends that the conviction was constitutionally infirm because a codefendant's confession was admitted in evidence and thus requires reversal under the Supreme Court's decision in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The district court upheld the conviction and Shuman appeals that ruling. The second issue concerns a conviction of murder in 1973. While serving his life sentence, Shuman was convicted in 1973 of the murder of a fellow inmate. The issue raised relating to this conviction is the constitutionality of the Nevada statute in effect in 1973 that provided for a mandatory death sentence for a conviction of murder perpetrated by a person who is under sentence of life imprisonment without the possibility of parole. The district court held the statute unconstitutional and the State of Nevada appeals. We affirm both rulings of the district court.

I. FACTS

In 1958, petitioner Shuman and a codefendant were convicted of first degree murder in the shooting death of a truck driver during a robbery on the roadside of a Nevada highway. The confessions of Shuman and the codefendant revealed that the codefendant shot the truck driver while Shuman remained in the car.

In 1958, the applicable criminal statute, Nev.Rev.Stat. Sec. 200.030 (1957), provided that if the jury found a defendant guilty of murder in the first degree, the jury could fix the penalty at death or life imprisonment, with or without the possibility of parole. The jury, in returning its verdict of guilty of first degree murder, designated the penalty of life imprisonment without the possibility of parole for both defendants.

In 1973, while serving his sentence of life imprisonment without the possibility of parole, Shuman was convicted of "capital murder" for the killing of a fellow prison inmate. The Nevada statute in effect at that time provided for three separate categories of murder: capital murder, murder in the first degree, and murder in the second degree. The mandatory penalty for capital murder was death. On appeal, the Nevada Supreme Court upheld the conviction and the death penalty, after evaluating Shuman's challenge to the constitutionality of the pertinent provisions of the mandatory death penalty statute. Shuman v. State of Nevada, 94 Nev. 265, 578 P.2d 1183 (1978).

On July 24, 1978, Shuman filed petitions for habeas corpus and, by mid-1982, had exhausted his state remedies. The federal district court held an evidentiary hearing on the Bruton issue on July 8, 1983. At that hearing, the court clerk of the 1958 trial, Martha Barlow, brought to the court the physical evidence of that trial, much of which was introduced into evidence at the hearing through Mrs. Barlow, including Shuman's signed confession, tapes of the codefendant's confession, and Shuman's more detailed confession to the relevant 1958 murder and another murder committed in California a short time before. Although by 1983 Barlow had no independent recollection of what parts of the tapes had been played, with the help of notes she had written during the trial on transcripts of the tapes, she was able to identify those portions of the tapes that were played for the jury in 1958. Barlow also informed the court of the unavailability of any trial transcript. One court reporter had destroyed his notes prior to 1966 and the other had retired sometime prior to 1978 and could not be located. The district court rejected the Bruton contention based on harmless error, but vacated the death sentence, finding it unconstitutional because it was mandatory.

II. THE ALLEGED BRUTON ERROR

Shuman challenges the admission during his 1958 murder trial of the out-of-court confession of his codefendant, Melvin Lee Rowland, which implicated Shuman. In Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1968), the Supreme Court held that introduction of such extrajudicial statements violates the defendant's right of confrontation secured by the confrontation clause of the sixth amendment and that cautionary limiting instructions that the confession is evidence only against the confessing defendant, such as those given by the state trial court, do not remedy the deprivation of the right to confrontation. Bruton applies retroactively. Roberts v. Russell, 392 U.S. 293, 293, 88 S.Ct. 1921, 1921, 20 L.Ed.2d 1100 (1968). The district court concluded that the admission of Rowland's confession constituted Bruton error, but that the error was harmless beyond a reasonable doubt. The Supreme Court has held that a Bruton error is not reversible error if it can be shown that it was harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 253-54, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969).

The district court was initially confronted with the problem that the trial transcripts no longer exist; however, the court clerk from the 1958 trial, Martha Barlow, presented the court with exhibits considered by the jury, including a three-page signed confession of Shuman, three tapes of Shuman's two-day-long oral confession, and tapes of codefendant Rowland's confession. The clerk testified as to which parts of the tapes the jury heard based on contemporaneous notes she had made on even with the excisions made, furnishes a detailed and complete account of the murder of which petitioner was convicted at his 1958 trial. The confession of Marvin Lee Rowland, although not quite as detailed as petitioner's confession, and even with excisions made in it, also gives a complete account of the same murder. Both confessions as received in evidence are in agreement with one another and interlock. There are no material conflicts between the two as to any element of the murder. It is readily apparent from a reading of petitioner's confession that that confession alone provided more than a sufficient basis for his conviction.

                the ninety-page transcript of the tapes. 1   The district court found that the confession
                

See Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713 (1979) (error harmless where "the incriminated defendant has corroborated his codefendant's statement by heaping blame onto himself").

Shuman disputes the admissibility of Mrs. Barlow's testimony, arguing that Mrs. Barlow had no independent recollection of which portions of the taped confessions were played. ² Her testimony was based largely upon the notes she had made during the trial on the transcripts of the tapes. Such evidence is admissible under Fed.R.Evid. 803(5) since Mrs. Barlow adequately testified to the three foundational elements: (1) that she had once had the knowledge but, by the time of the hearing, had insufficient recollection to enable her to testify fully and accurately, (2) that the notes were made when the matter was fresh in her memory, and (3) that the notes correctly reflected that knowledge. Further, this objection to the admissibility of this evidence is inconsistent since Shuman must rely on Mrs. Barlow's notes to press his Bruton claim concerning the introduction of codefendant Rowland's confession.

We agree with the district court that the erroneous admission of Rowland's confession was harmless beyond a reasonable doubt under the standards of Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1968), and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

III. THE MANDATORY DEATH PENALTY

We now turn to consideration of the State of Nevada's cross-appeal of the district court's holding that the statute under which Shuman was sentenced is constitutionally infirm because of its mandatory nature. The applicable statute in effect at the time of Shuman's 1976 conviction, Nev.Rev.Stat. Sec. 200.030 (1973), provided in pertinent part:

1. Capital murder is murder which is perpetrated by:

....

b. A person who is under sentence of life imprisonment without possibility of parole.

....

5. Every person convicted of capital murder shall be punished by death. ³

The Nevada Supreme Court in Shuman v. State, 94 Nev. 265, 578 P.2d 1183 (1978) The Nevada Supreme Court was quite correct that we are here dealing with the exact circumstance for which the Supreme Court specifically reserved judgment. The district court had, and this court has, the advantage of some additional decisions of the Supreme Court that shed light on the issue that were not available to the Nevada Supreme Court at the time of its decision. The district court, in a carefully reasoned decision, concluded that the recent opinion of the Supreme Court in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), made apparent its disdain for the mandatory death penalty in general and that the reasons there expressed would apply as well in the circumstances of a murder committed by a person serving a life sentence.

                upheld the constitutionality

...