Stewart v. Corbin

• Citation: 850 F.2d 492
• Decision Date: 16 June 1988
• Docket Number: No. 86-2920,86-2920
• Parties: Alexander STEWART, Petitioner-Appellant, v. Robert CORBIN, et al., Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 492

850 F.2d 492

Alexander STEWART, Petitioner-Appellant, v. Robert CORBIN, et al., Respondents-Appellees.

No. 86-2920.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 16, 1987.

Decided June 16, 1988.

Craig A. Morgan, Phoenix, Ariz., for petitioner-appellant.

Joseph T. Maziarz, Diane M. Ramsey, Asst. Attys. Gen., Phoenix, Ariz., for respondents-appellees.

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

Before CANBY and BOOCHEVER, Circuit Judges, and IDEMAN, ^* District Judge.

IDEMAN, District Judge:

I. INTRODUCTION

This is an appeal from a judgment of the United States District Court for the District of Arizona denying appellant's petition for a writ of habeas corpus. The writ was sought on the grounds that the shackling and gagging of appellant during his jury trial for armed robbery in state court violated his right to due process of law as guaranteed by the United States Constitution.

We hold that under the circumstances presented in this case, appellant's federally guaranteed constitutional rights were not violated. Furthermore, we hold that certain other claims of appellant do not present federal questions or were not presented to the district court and thus were not preserved for review by this court.

AFFIRMED.

II. THE ROBBERY

A. Prosecution's Rendition

The jury heard the following evidence regarding the robbery: On July 18, 1980, Steven Levine was working as a night auditor at the Howard Johnson's Motor Lodge in Tempe, Arizona. Mr. Levine called the police when he noticed a suspicious car in the parking lot at approximately 3:00 a.m. Shortly thereafter, two males walked in. One of the two males, who was subsequently identified by Mr. Levine as appellant, was described by Levine as a black male, approximately five-seven or eight, wearing a dark shirt and army fatigue pants. They initially pretended to want a room. One of them, later positively identified by Levine as appellant, pulled out a gun and forced him to lie on the floor. The two men tied Levine's legs and struck him on the back of his head. They then emptied the cash register and the safety deposit box, taking approximately $130.00 in cash. The two men subsequently fled out the back way when the police arrived.

Following a radio broadcast, the suspect car was spotted pulling into a parking lot. Two men ran from the car. A police helicopter later spotted appellant hiding nearby. Appellant was wearing a black tank top and army fatigue pants when he was arrested. He was carrying a loaded gun, and had $139.00 in his pocket. A search of the suspect vehicle revealed eight different motel room keys, a loaded shotgun, and appellant's fingerprints on an interior window.

B. Defendant's Rendition

Appellant took the stand on his own behalf and testified on direct examination that he was a passenger in the car and did not participate in, nor know about, the robbery. However, he refused to submit to cross-examination by the prosecution. The trial court eventually struck appellant's direct examination and admonished the jury to disregard it. There was no other evidence for the defense. Thus there was no defense evidence for the jury to consider. Therefore, the state of the record as to the evidence before the jury is that the prosecution's evidence was uncontroverted.

III. THE PRETRIAL SHACKLING HEARING

The prosecution made a pretrial motion that appellant be shackled during the trial. The trial court held a hearing on that motion that extended over several days, which included the testimony of numerous witnesses. This court has conducted an independent examination of the record of that hearing, a transcript of which is before us as an exhibit. In addition to the facts alluded to in counsels' briefs we have noted a number of other facts disclosed at that hearing, tending to show that appellant was a violent, disruptive, dangerous and contumacious individual who was a very high escape risk and who also presented a distinct risk of physical assault to courtroom personnel.

The hearing revealed the following:

Appellant lied about his identity when arrested, at his preliminary hearing, and at the pretrial hearings.

Appellant falsely told the court that he had no prior convictions. It was proved that, under his true identity, appellant had four prior felony convictions for armed robbery, assault, and escape. In addition, appellant was wanted by the State of New Jersey for yet another escape. The escape that constituted a prior conviction occurred while appellant was being taken under guard to a hospital for treatment. He bolted from the officers' custody and threw himself through a plate glass door. The escape for which appellant was wanted was perpetrated while he was handcuffed and being transported under guard. Obviously, it was successful.

There was testimony that several judges who had presided during various court proceedings in this case had warned appellant that he might be removed from their courtrooms due to his obstreperous conduct, which was described as emotional, overly impulsive, and erratic.

Appellant had threatened one judge, using abusive language.

Appellant fought with Deputy Evans while in the courtroom during an earlier pretrial proceeding and knocked the deputy down.

One of appellant's former defense attorneys, Mr. Warren Levenbaum, testified and admitted that appellant was disruptive. Mr. Levenbaum testified that based upon his observations of appellant in court, he considered appellant to be a violent person. Mr. Levenbaum further testified to the confrontation between appellant and Deputy Evans in court wherein Deputy Evans struggled with appellant in an effort to restrain him. Appellant struck the deputy in the chest, knocking him off balance. They struggled until Deputy Evans finally subdued the appellant and forcibly removed him from the courtroom. Deputy Evans testified at the pretrial hearing that he believed that appellant was attempting to assault him and escape, although the presiding judge did not view the altercation as an escape attempt. Deputy Evans sustained injuries from this struggle with appellant. At the time of this confrontation appellant was wearing handcuffs, which obviously were insufficient to control him.

Appellant also issued verbal threats of physical assault in open court. Following an unfavorable ruling concerning self-representation during a pretrial hearing, appellant told the judge: "... Don't make me get hostile. I don't want to have to start attacking people physically. But I'm telling you, you put me in that position. If you send someone to represent me, he is going to be subjected to an attack."

At one point appellant tore off a part of a court exhibit and took it with him from the courtroom.

An officer from the sheriff's department testified that appellant was considered an escape risk, and extra precautions were taken when transporting him.

An officer testified that in his opinion, a leg brace alone would be insufficient to ensure the security of appellant.

Major Perkins, a deputy with the Maricopa County Sheriff's Department, testified to a struggle he had with appellant while escorting him out of the courtroom.

After hearing several days of testimony on the shackling question, the trial court interrupted the hearing to select a jury. The court stated: "I think we'll just recess and we'll draw the jury at 9:30 on Monday, then we'll recess and do whatever else we have to do on this subject." (The shackling hearing.) The court was not ready to make a decision on shackling appellant since it had not then heard all of the evidence on the question but made an interim order that appellant wear a leg brace under his trouser leg during the jury selection process.

Appellant, who was representing himself at this point, objected to the leg brace on the grounds that it would make him limp and therefore be prejudicial before the jury as the jury might conclude that he was faking a limp to confuse his identification by the witnesses. Appellant claimed that he did not know how to operate the leg brace, but a deputy testified that appellant had been shown how to operate it. Appellant finally agreed to the leg brace but in the presence of the court and the jury panel "collapsed" into his chair, due to his claimed inability to operate the leg brace.

After the jury was selected, the shackling hearing continued. The trial court heard details concerning appellant's recent escape from custody in New Jersey, while he was being transported by two guards with his hands handcuffed behind his back. There was testimony about appellant's disruptive conduct in the local jail, including throwing a food tray at a detention officer and being in an area of the jail that was off-limits to him. A deputy testified that he did not think he could control appellant unless he was in leg irons and handcuffs. The trial court noted that many of appellant's own witnesses supported the allegations regarding appellant's disruptive behavior.

At the conclusion of the hearing, the trial court concluded that appellant should be shackled and handcuffed during the trial, due to the risk of escape. The court ruled: "It's the burden of the Court to make a decision on the basis of some evidence and [appellant] many of your own witnesses confirmed the allegation of the county attorney, so it is going to be my order that you remain shackled and cuffed." At this point appellant changed his mind about the leg brace and offered to wear it in lieu of shackles. However, the trial court adhered to its ruling.

IV. THE ORDER TO GAG APPELLANT

The prosecutor made a pretrial motion in limine to preclude appellant from requesting a lie detector test in the presence of the jury. The prosecutor informed the trial court that during one of appellant's trials in a New Jersey court, appellant had jumped to his feet in the presence of the jury and requested a lie detector test. Appella...