Unpublished Disposition, 849 F.2d 1476 (9th Cir. 1988)

No. 87-15011.

United States Court of Appeals, Ninth Circuit.

Before ALARCON and CYNTHIA HOLCOMB HALL, Circuit Judges and ROBERT J. KELLEHER, District Judge.^*** 

Petitioner-Appellant Ervin Jones (Jones) appeals a district court order denying his petition for a writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

* On January 1983, Jones was stopped on a freeway off-ramp because his truck was weaving and traveling at approximately seventy miles per hour. Jones was asked to perform two field sobriety tests, which Jones was unable to complete adequately.

After being arrested and taken to the station, Jones took a urine blood alcohol test. The urine test indicated a blood alcohol level of .27 per cent.

Jones was tried for driving under the influence of alcohol, among other things. He was convicted and was sentenced to a total of 100 days in jail. After exhausting his state remedies, he then filed the present petition for a writ of habeas corpus.

II

We review de novo a district court's decision to grant or deny a petition for a writ of habeas corpus. Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir. 1985). We review the magistrate's findings of fact and their adoption by the district court for clear error. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986), cert. denied, 108 S. Ct. 198 (1987).

III

A federal court may disturb the evidentiary rulings of a state court to correct wrongs of a constitutional dimension or if the error is of such a magnitude as to have denied appellant the right to a fair trial. Smith v. Phillips, 455 U.S. 209, 221 (1982).

Jones first argues that the trial court prejudicially impaired his sixth amendment right to cross examination when it prevented him from reading the content of published scientific studies relating to urine testing while cross examining the prosecution's expert.

The confrontation clause of the sixth amendment guarantees the right of a criminal defendant "to be confronted with the witness against him." Davis v. Alaska, 415 U.S. 308, 315-16 (1974); United States v. McClintock, 748 F.2d 1278, 1289 (9th Cir. 1981). In Delaware v. Fensterer, however, the Court held that the "confrontation clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and whatever extent, the defense might wish." 474 U.S. 15, 20 (1985).

We treat Jones' confrontation clause claim just as this court treats any reasonable limitations on cross-examination. As long as the limitations do not deprive the defense of effective cross-examination, judges have wide latitude to impose reasonable limits to prevent confusion or repetition of the evidence. Delaware v. Van Arsdall at 678-79; Chipman v. Mercer, 628 F.2d 528, 530 (9th Cir. 1980).

Here, the trial court reasonably limited Jones' cross-examination based on the belief that the jury would be confused and misled if these articles were read aloud in open court, in small increments, and possibly out of context. Jones' inability to quote from the studies directly did not make his arguments less dramatic or less persuasive. The state witness was thoroughly examined on his knowledge of the pamphlets and on his opinion regarding them. Moreover, Jones' own expert was permitted to testify extensively on the opinions of the experts who authored the excluded studies. Consequently, the trial court's limitation was not a violation of Jones' cross-examination rights because it did not impair the effectiveness of his cross-examination.

Jones also argues that his due process right to a fair trial was denied because the judge prohibited his expert from referring to the contents of those same studies. The defense expert testified that he had read the relevant studies and agreed with them. As the magistrate concluded, admitting the studies in evidence would have only served to bolster the expert's opinions, and could not have provided any new information. Due process is not so easily violated.

IV

The prosecutor, while questioning Kathleen Madrid, Jones' secretary, about her relationship with Jones, asked her whether she knew of Jones' marital status. The prosecutor also questioned Madrid's ability to remember what she and Jones had done prior to Jones' arrest by asking "it is only after you talked about this with both Mr. Jones and his attorney that you remember the specific details of that date, isn't correct?" Jones argues that his due process rights were violated because these remarks were irrelevant, prejudicial and rendered his trial fundamentally unfair.

Before habeas corpus relief will be granted in cases of allegedly improper remarks at trial by the prosecutor, the statements must be so egregious as to render the trial fundamentally unfair. Donelly v. DeChristoforo, 416 U.S. 637, 643 (1974). We consider whether the prosecutor's remarks, in the context of the entire trial, were sufficiently prejudicial to violate the petitioner's rights. Donelly at 639.

Anything that raises a suspicion that there could be a motive to fabricate or to consciously or unconsciously slant matters are proper subjects of inquiry of any witness. See, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986). Although the prosecutor sought to show a form of bias on Madrid's part, his question as to Jones' marital status was of questionable relevance. Nevertheless, the remark was not so egregious as to render Jones' trial unfair. No special emphasis was put on Madrid's response to it. Moreover, it is improbable that the jury took this question out of context and attached any damaging meaning to it. Again, due process is not so easily denied. See Donelly at 645.

Jones' contention that the prosecutor allegedly accused the defense of witness tampering can just as easily be dismissed. The record contains nothing to indicate that the prosecutor implied that Madrid's testimony was fabricated. The prosecutor was merely trying to raise doubts about Madrid's memory. We conclude that the prosecutor's question was not so misleading and prejudicial that it deprived Jones of a fair trial.

V

Jones argues that the trial court violated his due process rights when it refused to give his proferred instruction on the state's failure to follow the proper procedures when it tested him for blood alcohol levels. The correctness of a state court decision on jury instructions provides the basis for federal habeas corpus relief only if the error amounts to a deprivation of due process. Quigg v. Crist, 616 F.2d 1107, 1111 (9th Cir. 1980).

Here, the trial court refused the instruction because it was not compatible with the evidence. The court found that the urine test was performed in accordance with Title 17 of the California Administrative Code. Jones' assertion of an alleged error is supported only by Officer Watts' retracted remark that the urine sample was taken in a dixie cup rather than in a specially prepared vial. Where little evidence is offered, it is not error for the trial court not to instruct the jury on a conjectural state of facts. See Morris v. United States, 326 F.2d 192, 195 (9th Cir. 1963). Thus, the failure to read the instruction did not violate Jones' rights to due process.

Jones next argues that the mandatory presumption found in CALJIC 12.61, which the court read to the jury, was constitutionally infirm. Subsequent to Jones' trial, a California appellate court found CALJIC 12.61 to be unconstitutional.

Jones' position relies in large part on the holding in Sandstrom v. Montana, 442 U.S. 510 (1979). There, the Supreme Court held a jury instruction that created a presumption that shifted the burden of proof of criminal intent to the defendant unconstitutional. However, in Rose v. Clark, 106 S. Ct. 3101 (1986), the Supreme Court held that where a Sandstrom error is alleged, an otherwise valid conviction may not be reversed where the error is harmless beyond a reasonable doubt. Id. at 3107. The observations of Officers Watts and Streyker as to Jones' objective symptoms, including the odor of alcohol on Jones breath and his failure of the field sobriety tests as well as Officer Watts' testimony that Jones' truck was weaving and driven at excessive speeds, render the error harmless because beyond a reasonable doubt the jury would have still found Jones guilty of driving under the influence of alcohol even had the jury not relied on the presumption.

As to Jones' last contention, we agree with the magistrate's view that the court's refusal to give an instruction advising the jury to consider with caution admissions made by Jones to Officer Watts did not have any impact on the fairness of Jones' trial.

VI

Finally, we find no merit to Jones' argument that the above errors collectively constitute a ground for granting his petition for habeas corpus.

AFFIRMED.