Unpublished Disposition, 860 F.2d 1088 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 860 F.2d 1088 (9th Cir. 1988)

Kenneth Mac CLAYTON, Petitioner-Appellant,v.Roger CRIST, Warden, et al., Respondents-Appellees.

No. 87-2692.

United States Court of Appeals, Ninth Circuit.

Submitted March 15, 1988.* Decided Sept. 28, 1988.

Before KOELSCH, SCHROEDER and FLETCHER, Circuit Judges.


MEMORANDUM** 

The conclusion is manifest that the District Court did not err in denying Kenneth Clayton a Writ of Habeas Corpus.1 

* Clayton being a pro per litigant, it is understandable that his contentions are not set out in his briefs with crystal clarity. Thus to his first point that the state trial judge failed to instruct the jury on the crimes of murder of the second degree and manslaughter and his reliance on cases which speak of the latter as "included offenses", the prosecution devotes quite a bit of space in its brief and argument to the fact that in Arizona the proposition is well settled that to a charge of "felony murder" (on which Clayton was convicted) the lesser included offense doctrine is not applicable and hence no such instructions need have been given. Although valid, the prosecution's argument misses the point.

This is a federal habeas corpus proceeding and our review of the state court conviction is one limited to searching for constitutional error. 28 U.S.C. § 2254; Wainwright v. Sykes, 433 U.S. 72 (1977). Clayton's argument, although not clear, appears to be that the failure to instruct was fundamentally unfair in that he was denied the right to have the jury consider his theory of the defense. See United States v. Marabelles, 724 F.2d 1374, 1383 (9th Cir. 1984). Such deprivation, if unwarranted, does of course afford a basis for relief cognizable in a habeas action. Cupp v. Naughten, 414 U.S. 141, 146 (1973).

However, in order to permit an instruction on a particular matter, the record must contain some evidence on the subject; a litigant has no right to an abstract instruction and may not complain if one is not given. It is for that reason that Clayton suffered no constitutional deprivation here. State v. Richmond, 540 P.2d 700 (Ariz.1975) is cogent. In that decision, the Arizona court affirmed its adherence to the continuous transaction or "res gestae" rule: "the courts reach a uniform conclusion and when the felony is so entwined with the murder that it is part of that murder we will not hold a stop watch on the events or artificially break down the actions of the defendant into separate compartments in order to avoid the clear intent of the legislature in enacting the felony murder rule." Id. at 704. Under this rule, a killing resulting from a chain of events set in motion by a defendant's actions furthering the felony is inherently "in furtherance" of the felony itself. Such was the case here, even if Clayton's testimony is to be believed. Thus, we are clear that as a matter of law, Clayton's alleged surrender does not take the case out of the felony murder doctrine. Accordingly, there was no evidence upon which to have based an instruction on second degree murder or manslaughter. See also Annotation, What Constitutes Termination of Felony For Purpose of Felony-Murder Rule, 58 ALR3d 851 (1974).

And to afford Clayton every benefit of the doubt on this appeal, we also address his argument in his reply brief that his counsel failed to request the giving of a manslaughter or second degree murder instruction. Construed as a claim that his counsel's assistance was constitutionally deficient, it must fail for two reasons: first, the record shows--as Clayton in his opening brief at page 4 apparently recognizes--that his counsel did request its giving; and second, even if his counsel had not, Clayton could not show that he suffered any prejudice by his counsel's alleged failure to make the request. As we have shown, the evidence did not support its giving.

Thus, on all theories however construed, we are clear that Clayton suffered no infringement of his constitutional rights by the court's refusal to instruct on manslaughter or second degree murder.

II

Nor was Clayton "subject for the same offense to be twice put in jeopardy of life or liberty" (U.S. Constitution Amendment V) when the trial court allowed the prosecution to dismiss the premeditated murder count but to proceed on the felony count also charged in the information. Premeditated murder and felony murder, by definition, do not constitute the same offense under the Blockburger test. See Blockburger v. United States, 284 U.S. 299 (1932). Each requires proof that the other does not: premeditated murder requires proof of an intent to kill with malice aforethought; felony murder requires proof of a killing committed in the perpetration of a predicate felony.

III

The incident of the locked courtroom doors does not amount to a violation of Clayton's Sixth Amendment right to a "public trial". All that appears is that at one point during the selection of the jury it was noticed that one of the jurors had to knock to be let out of the courtroom. The matter was immediately called to the attention of the trial judge who upon expressing his surprise noted that " [t]here are people in here" and ordered the doors opened immediately.2 

At most, the matter was de minimis.

IV

Clayton is simply mistaken in his claims of fundamental error with respect to the matter of instruction.

As to the abandonment instruction, our previous discussion in part I explains that we are clear that no abandonment instruction need have been given, for on these facts the burglary as a matter of law had not been abandoned. But to the point that the trial court did in fact give an instruction on the subject of abandonment (of the burglary), and that it was given in combination with an instruction on self defense, suffice it to say that the proposition and the others were not inadequately explained, incorrectly stated nor framed in a way to confuse or be overlooked by a juror. No error appears by the trial court's refusal to give an abandonment instruction before Clayton took the stand because, as we have said, the facts did not support the giving of the instruction. Thus, Clayton was not forced to take the stand to claim anything to which he was already entitled. We are also clear that nowhere in its instructions did the trial judge usurp the jury's function by finding any fact in dispute. To the contrary the trial judge did not even "comment on the evidence", a practice permissible at least within some limits under the constitution without invading the province of the jury. His postulates of various situations were all framed in the subjunctive and coupled with the admonition that the jury was the sole and exclusive judge of facts.

V

The "impartial jury" provision of the Sixth Amendment, in terms comprehends only members of that body--only those persons who actually comprise the jury; it does not as Clayton urges extend to the entire venire from which the jury is selected.

Here only two of the eleven persons that Clayton singles out to provide the basis for his attack on the fairness of his trial were members of the jury; necessarily any injury must be limited accordingly.

But Clayton at the very threshold of his contention is confronted by two insurmountable hurdles: first, it was incumbent on him to excuse his failure to duly challenge either of the jurors for cause; and second, he was obliged to show prejudice because those jurors were allowed to sit and participate in the verdict. As indicated, he made no showing as to the first requirement; moreover, passing that deficiency, the record does not demonstrate that either juror would act unfairly and thus taint the jury.

VI

We need not address Clayton's last assignment of error--that his conviction and sentencing for both the felony-murder and the underlying felony offended the Double Jeopardy Clause. This point is moot: the sentences ran concurrently and Clayton has already completed his sentence for the burglary conviction.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The background of this matter is well known to the parties and will not be repeated in this Memorandum disposition. Suffice to say, the essential details are set out in the concise and accurate statement of the Arizona Supreme Court in State v. Clayton, 109 Ariz. 587, 514 P.2d 720 (1973)

 2

It is apparent that the trial judge had no part in the doors' locking. Thus we are not confronted with a situation where prejudice would be implied if the closure was improperly ordered. See United States v. Hernandez, 608 F.2d 741 (9th Cir. 1979)

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