Valdez v. Winans, 82-2503

• Decision Date: 26 June 1984
• Docket Number: No. 82-2503,82-2503
• Citation: 738 F.2d 1087
• Parties: Richard VALDEZ, Petitioner-Appellant, v. Harvey D. WINANS, Warden, New Mexico State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1087

738 F.2d 1087

Richard VALDEZ, Petitioner-Appellant, v. Harvey D. WINANS, Warden, New Mexico State Penitentiary Respondent-Appellee.

No. 82-2503.

United States Court of Appeals Tenth Circuit.

June 26, 1984.

Tova Indritz, Federal Public Defender, Albuquerque, N.M., for petitioner-appellant.

Michael E. Sanchez, Asst. Atty. Gen., Santa Fe, N.M. (Paul G. Bardacke, Atty. Gen., and Eddie Michael Gallegos, Asst. Atty. Gen., Santa Fe, N.M., with him on brief), for respondent-appellee.

Before McWILLIAMS and SEYMOUR, Circuit Judges, and WEINSHIENK, ^* District Judge.

McWILLIAMS, Circuit Judge.

This is a federal habeas corpus proceeding involving a state prisoner. 28 U.S.C. Sec. 2254 (1976). Following an extended evidentiary hearing, a federal magistrate made certain findings and then recommended dismissal of the petition with prejudice. Objections were made to the findings and recommendation of the magistrate. The federal district judge, after making a de novo determination of that part of the magistrate's findings that had been challenged, adopted those findings and dismissed the petition with prejudice. Valdez appeals. We affirm.

I.

Some background facts are essential. A jury convicted Richard Valdez, in a New Mexico state court, of the armed robbery of an Albuquerque pharmacy in which money, narcotics and cigarettes were stolen. Under New Mexico's habitual criminal statute, Valdez was sentenced to life imprisonment.

At trial, Valdez was identified by three pharmacy employees and a customer as being one of two persons who robbed the pharmacy. The second robber was never identified or apprehended.

Valdez testified in his own behalf and denied any participation in the robbery. Defense counsel attempted to show that the government witnesses were mistaken in their identification of Valdez. Also, alibi evidence was offered tending to show that, at the time of the robbery, Valdez was at his job in a junk yard on the other side of town. As stated, the jury convicted Valdez, and, on appeal, the Supreme Court of New Mexico affirmed Valdez' conviction. State v. Valdez, 95 N.M. 70, 618 P.2d 1234 (1980). Valdez thereafter exhausted state post-conviction remedies and then instituted the present proceeding. Valdez claims that his Sixth and Fourteenth Amendment rights under the United States Constitution were violated during the course of his state trial.

Valdez' constitutional claims are based on the following sequence of events. About one week before the start of Valdez' trial, Ricky Garcia, a fellow prisoner awaiting trial on an unrelated charge, "confessed" to Valdez that he, Garcia, and a third party were the two who had actually held up the drugstore, and that Valdez was completely innocent. At that time, Valdez was represented by Alice Hector, who headed the Albuquerque branch of the New Mexico public defender's office. Valdez then conveyed the information given him by Garcia to Hector. When Hector approached Garcia, she found out that Garcia himself was represented by another attorney in the same public defender's office. She told Garcia that she was going to speak to his attorney. Hector was quite sure that Garcia's attorney would urge him not to say anything to Hector, but Hector told Garcia that the decision was his to make, and that she hoped that, when she returned to the jail, Garcia would be willing to talk.

Hector returned to interview Garcia that same day, and, according to Hector, Garcia was eager to talk despite his attorney's advice. He repeated his confession, and, according to Hector, evidenced knowledge of such detail as led her to conclude that Garcia was indeed one of the two robbers. Shortly prior to trial, after consulting with the trial judge concerning the possible conflict of interest in having the public defender's office represent both Garcia and Valdez, and realizing that she might be called upon to testify as a defense witness, Hector withdrew from the case. A private attorney was contracted by the public defender's office to represent Valdez.

At trial, defense counsel called Garcia as a witness. However, Garcia, on advice of counsel, refused to testify on Fifth Amendment grounds. Defense counsel then called Hector as a witness, and proposed to have her relate to the jury the confession given her by Garcia at the jail.

At this point, the prosecutor raised two objections. First, he argued that Hector, having worked in the same office as Garcia's attorney, was, for purposes of the attorney-client privilege, also Garcia's attorney. As such, Garcia had a right to prevent Hector from testifying in Valdez' behalf by asserting that privilege. Second, he argued that, even if it was not privileged, Hector's proffered testimony was inadmissible hearsay.

Garcia's attorney was called into the courtroom. The trial judge instructed her to discuss with her client whether he wanted to assert the attorney-client privilege. After a conversation with Garcia, his attorney returned and claimed the privilege for him. The trial court then sustained the prosecutor's objection. ¹

Accordingly, the Valdez jury was not allowed to hear the confession of Garcia, either from Garcia himself, or from Valdez' prior attorney, Hector. It is the latter fact that is at the heart of the present appeal. Valdez claims that the exclusion of Hector's proffered testimony was erroneous, and that it was of such importance to his defense as to deny him due process. Alternatively, Valdez contends that if Hector's testimony was properly rejected, then he was denied his Sixth Amendment right to effective assistance of counsel because Hector's actions deprived Valdez of the benefit of Garcia's confession.

II.

The basis for the state trial court's rejection of Hector's proffered testimony was the attorney-client privilege. N.M.R.Evid. 503(b), N.M.S.A. (1978). The New Mexico Supreme Court, in upholding the ruling, found that, although Hector did not actually represent Garcia, she was, in effect, his "attorney" because Garcia was represented by a member of her staff. As such, confidential statements made by Garcia to Hector came within the purview of the New Mexico rule. Valdez, 618 P.2d at 1236. The Supreme Court further found that Garcia's statements were given in confidence and to facilitate legal services to Garcia. Id. at 1236-37.

Under 28 U.S.C. Sec. 2254(d), federal courts are required to apply a presumption of correctness to state court findings of fact. See Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). In this case, whether Hector's proffered testimony was within the scope of the New Mexico rule on attorney-client privilege involves issues of fact and the interpretation of a local rule of evidence.

We have held that a state court's evidentiary rulings "may not be questioned in federal habeas proceedings unless they render the trial so fundamentally unfair as to constitute a denial of federal constitutional rights." Brinlee v. Crisp, 608 F.2d 839, 850 (10th Cir.1979), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980). Accord Corn v. Zant, 708 F.2d 549, 555 (11th Cir.1983) ("a federal court does not sit as a state appellate court to correct violations of state evidentiary rules."). Neither the magistrate nor the federal district judge was convinced that the privilege ruling was repugnant to the constitution, nor are we.

Valdez relies on Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), in support of his right, under the Compulsory Process Clause of the Sixth Amendment, to present the testimony of his own witnesses. This right is, of course, a fundamental element of due process. United States v. Crawford, 707 F.2d 447, 449 (10th Cir.1983). However, the right to compulsory process does not necessarily displace traditional testimonial privileges. Washington, 388 U.S. at 23, fn. 21, 87 S.Ct. at 1925, fn. 21; United States v. Turkish, 623 F.2d 769, 774 (2d Cir.1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 800 (1981). On occasion, the needs of the judicial process have been held to limit a claim of privilege, see, e.g., United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (presidential privilege), but the Sixth Amendment usually has been forced to yield when a testimonial privilege is asserted.

The Seventh Circuit in Myers v. Frye, 401 F.2d 18 (7th Cir.1968), faced a situation similar to the one now before us. There the defendant sought to establish his insanity by introducing letters written by him to his teenage accomplice. The letters were held by the teenager's attorney, and he refused to produce them for fear that they would incriminate his client. The defendant relied on Washington v. Texas, and argued that he had a Sixth Amendment right to compel the attorney to produce the letters. But the court of appeals, in dismissing the habeas petition, held that the attorney-client privilege should prevail. Id. at 21. See also United States v. Hunter, 672 F.2d 815 (10th Cir.1982) (upholding the privilege against self-incrimination); United States v. Brown, 634 F.2d 819 (5th Cir.1981) (upholding the marital privilege).

Valdez also relies on Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), to support his argument that prohibiting Hector from presenting the confession of Garcia to the jury amounts to a denial of due process. In Chambers, the Supreme Court reversed a murder conviction partly because the trial court had excluded the testimony of three witnesses to whom a party not charged with the murder had confessed. But in Chambers the evidence was excluded because of the hearsay rule, and the hearsay rule does not serve the same evidentiary purpose as the attorney-client privilege. The hearsay rule serves to exclude potentially unreliable evidence. "Privileges, on the other hand, are designed to promote relationships...