Unpublished Disposition, 852 F.2d 1289 (9th Cir. 1982)

87-3904.

United States Court of Appeals, Ninth Circuit.

Before WRIGHT and CANBY, Circuit Judges and JOHN P. VUKASIN, District Judge^** 

MEMORANDUM^*** 

Thomas B. Armstrong, III appeals the district court's denial of his petition for writ of habeas corpus. Armstrong contends that (1) his conviction was based on evidence obtained in several unconstitutional searches; (2) there was insufficient evidence to support the deadly weapon verdict; (3) the charging instrument was insufficient; (4) the trial court erred in failing to instruct the jury on the statutory meaning of intent under Washington law; (5) his conviction was obtained through perjured evidence; (6) the exclusion of certain defense witnesses was unconstitutional; and (7) the trial court erred in failing to give a special unanimity instruction. We affirm.

DISCUSSION

Armstrong first contends that his convictions were based on evidence obtained in three unconstitutional searches of his apartment in July and August 1982. Armstrong claims that the presence of King County Detective Chamberlin tainted the first search. Armstrong unsuccessfully raised this issue in his motion to suppress evidence of murder obtained in the first search, which was authorized by a warrant issued in connection with the arson investigation. "Where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas relief on the ground that evidence obtained in an unconstitutional search and seizure was presented at trial." Stone v. Powell, 428 U.S. 465, 494 (1976) (footnotes omitted); Knaubert v. Goldsmith, 791 F.2d 722, 725 (9th Cir.) (per curiam), cert. denied, 107 S. Ct. 228 (1986). The district court properly denied collateral federal review of Armstrong's claims with respect to the first search.

Nor did the district court err in denying federal habeas review of the second and third searches of petitioner's apartment. Armstrong did not contest the two later searches in his motion to suppress or at trial. The Washington Court of Appeals declined to review Armstrong's claims on the ground that error predicated upon evidence allegedly obtained by an illegal search or seizure cannot be raised for the first time on appeal. See State v. Cook, 31 Wash. App. 165, 639 P.2d 863, 870-71 (1982). Of course, state prisoners may not obtain federal habeas relief without first exhausting available state remedies by presenting their constitutional claims to the highest state court. Rose v. Lundy, 455 U.S. 509, 518-520 (1982); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981) (per curiam). Armstrong has neither shown any objective factor external to the defense causing his failure to comply with the state's procedural rule, nor does he allege ineffective assistance of counsel. See Murray v. Carrier, 106 S. Ct. 2639, 2648 (1987). Armstrong has therefore failed to demonstrate the cause and prejudice necessary to obtain federal habeas relief despite his state procedural default. Wainwright v. Sykes, 433 U.S. 72, 87 (1977). The district court properly denied Armstrong's fourth amendment claims with respect to the second and third searches of his apartment.

Armstrong next contends that the evidence presented at trial was insufficient to support the deadly weapon verdict. The trial court instructed the jury as follows: "For the purposes of the special verdict, a knife having a blade longer than three inches is a deadly weapon. The state must prove beyond reasonable doubt that the defendant was armed with a deadly weapon." At trial, the medical examiner testified that the victim died as a result of wounds that were caused by a weapon with a sharp edge, the longest of which had a trap of four inches. The jury viewed pictures of the wounds. Armstrong's contention that a rational trier of fact might disagree on the nature of the murder weapon misses the point. The proper test is whether a rational juror, viewing the evidence in the light most favorable to the prosecution, could find beyond a reasonable doubt that some weapon with a blade longer than three inches was used. See Jackson v. Virginia, 443 U.S. 307, 324 (1979). The district court did not err in denying relief on the deadly weapon claim.

Armstrong also asserts that the Information charging him with second degree murder was constitutionally defective because it did not adequately state the charges against him. A charging document must provide the defendant with a description of the charges against him in sufficient detail to enable him to prepare his defense and to plead double jeopardy in a later prosecution. See United States v. Krasovich, 819 F.2d 253, 254-55 (9th Cir. 1987). The Information filed against Armstrong contained the essential elements of second degree felony murder, including citations to the appropriate criminal code sections. Moreover, an affidavit attached to the Amended Information explained the evidence underlying the charges against Armstrong. The district court did not err in ruling that the Information was constitutionally sufficient.

The trial court instructed the jury that it could return a conviction of second degree murder if the government proved beyond a reasonable doubt both that the defendant caused the death of Patricia Crossman between January 12 and 13, 1982, and that the criminal acts occurred in King County, Washington. The jury was further instructed that to convict it had to find:

(2) That the defendant acted by one or more of the following means or methods:

(A) (i) That the defendant acted with the intent to cause the death of Patricia Crossman; and (ii) that Patricia Crossman died as a result of defendant's acts;

--OR--

(B) (i) That the defendant was committing or attempting to commit the crime of assault in the second degree; and (ii) that the defendant caused the death of Patricia Crossman in the course of and in furtherance of such crime or in immediate flight from such crime; and (iii) that Patricia Crossman was not a participant in the crime.

Instruction No. 8. Although he did not request such an instruction at trial, Armstrong contends that the trial court's failure to instruct the jury on the meaning of intent constituted reversible error. The state court of appeals denied Armstrong's claim as meritless notwithstanding the fact that Washington law remains unsettled as to whether the failure to instruct on intent may be raised for the first time on appeal.¹  It is not at all clear that Armstrong's challenge to the correctness of jury instructions under state law raises a federal constitutional question. See Van Pilon v. Reed, 799 F.2d 1332, 1342 (9th Cir. 1986). Even if it does, we conclude that the omission of the instruction was harmless beyond a reasonable doubt. The jury's finding of guilt under the facts of this case necessarily establishes that the murder occurred in the course of a second degree assault. See Pope v. Illinois, 107 S. Ct. 1918, 1922 (1987). Intent is not an issue under that approach. The district court properly denied federal habeas relief on the intent instruction claim.

Armstrong asserts that Kent and King County officials committed perjury at the pre-trial suppression hearing by testifying that the investigation into the Patricia Crossman murder had not uncovered any particular leads or suspects as of July 25, 1982. Armstrong contends that this testimony prejudiced the defense by precluding the introduction of the testimony of a witness who claimed that she spent the night before the murder with the victim, and that the victim told the witnesses that she had been recently threatened by a pimp. Petitioner's claim is based on police reports indicating that police officers interviewed several pimps and prostitutes soon after Crossman's murder.

The mere fact that such preliminary investigation had taken place is not inconsistent with the police testimony at Armstrong's pre-trial suppression hearing that the investigation was still unfocused and without a primary suspect. Armstrong has failed to demonstrate a denial of due process or inadequate support in the record necessary to overcome the presumption of correctness accorded the factual determinations of the state courts. Bashor v. Risley, 730 F.2d 1228, 1232-33 (9th Cir.), cert. denied, 469 U.S. 838 (1984). The district court properly denied federal habeas review of Armstrong's perjury claim.

Armstrong next contends that the trial court unconstitutionally excluded defense testimony concerning petitioner's behavior after the homicide, as well as evidence relating to alleged threats against the victim made by a pimp. Armstrong argues that the admission of state's evidence concerning his behavior on the night of the homicide opened the door to rebuttal testimony. While a defendant's sixth amendment right to present witnesses in his favor applies to the states through the fourteenth amendment, Washington v. Texas, 388 U.S. 14, 18-19 (1967), that right is not absolute. A defendant must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt or innocence. See Chambers v. Mississippi, 410 U.S. 284, 302 (1973). In order to restrain the operation of state rules of evidence, Armstrong must demonstrate that his interest clearly outweighs the state's interest in its efficient judicial process. Perry v. Rushen, 713 F.2d 1447, 1453 (1983), cert. denied, 469 U.S. 838 (1984). Thus, while Armstrong is entitled to prove his innocence by showing that someone else committed the crime, United States v. Brannon, 616 F.2d 413, 418 (9th Cir.), cert. denied, 447 U.S. 908 (1980), cumulative evidence, or evidence of little probative value, will almost never outweigh the state interest in efficient judicial process. Id. at 1453.

The proposed defense testimony concerning petitioner's demeanor in the days following Crossman's homicide is neither relevant nor exculpatory. The testimony concerning the potential pimp suspect would certainly not exonerate Armstrong. In contrast, the state has a significant interest in the application of its rule that evidence of another suspect is admissible only after a proper foundation is laid. See State v. Jones, 26 Wash. App. 551, 614 P.2d 190 (1980) (foundation must include proof of a connection with the crime by a train of facts or circumstances that tends clearly to show someone beside the accused to be the guilty party). The state also has an interest in its rule that evidence of motive or threats do not alone constitute sufficient connection with the commission of a crime. Id. at 555. The district properly denied Armstrong's claim because the proposed defense evidence was not so probative that its exclusion outweighed the state's interest in applying its rules of evidence.

Armstrong finally argues that a special unanimity instruction should have been given because the jury was presented with two alternative theories for returning a second degree murder verdict: intentional or felony murder. A special unanimity instruction should be given in cases where the complex nature of the evidence, or where a discrepancy between the indictment and the evidence, creates a genuine possibility of juror confusion. United States v. Frazin & Miller, 780 F.2d 1461, 1468 (9th Cir.), cert. denied, 107 S. Ct. 158 (1986); United States v. Payseno, 782 F.2d 832, 836-37 (9th Cir. 1986). In this case, none of the elements requiring a special unanimity instruction is present. Moreover, any juror finding that Armstrong intended to kill the victim must also have concluded that he assaulted her. Thus, the district court properly concluded that the alternative theories of the second degree murder instruction did not permit the jury to find Armstrong guilty as a result of inconsistent factual findings.

The district court's denial of the petition for writ of habeas corpus is AFFIRMED.