Unpublished Disposition, 865 F.2d 263 (9th Cir. 1976)

No. 87-2815.

United States Court of Appeals, Ninth Circuit.

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

MEMORANDUM^** 

Richard Bud Britson ("Britson"), after trial in Arizona state court, was convicted of first-degree murder, armed kidnapping, and armed burglary and sentenced to life imprisonment. He appeals from the district court denial of his petition for writ of habeas corpus. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

FACTS AND PROCEEDINGS BELOW

On August 25, 1976, Britson arrived at the trailer where his wife Adeline ("Ginger") Britson, lived with two other men, Lynn Anderson and Joe Chapmen. Mrs. Britson testified in the trial below that her husband arrived carrying a six-pack of beer and a brown paper sack which he told her contained beans. Britson, his wife, and Anderson talked and drank beer. After a while, Britson went to the bathroom, taking the brown paper sack with him. He emerged from the bathroom with a gun and immediately shot Anderson, who died instantly. Britson and his wife then left the trailer and went to a downtown hotel. Mrs. Britson testified that her husband refused to call the police, watched her constantly, and would not let her leave. After several days, the couple went to the police department and surrendered.

Britson took the stand at his trial and testified that he shot Anderson in self defense. He stated that an argument started after the three had been drinking. Anderson pulled a knife, tried to force Britson to sign divorce papers, and threatened to kill him. Britson then shot him. He said that he intended to surrender but wanted to spend a few days with his wife first. He told his wife to tell the police that she had been kidnapped so that she would not be in trouble for aiding and abetting a criminal.

Britson was convicted of first-degree murder, armed kidnapping and armed burglary and sentenced to death. His convictions and sentence were affirmed by the Arizona Supreme Court. State v. Britson, 130 Ariz. 380, 636 P.2d 628 (1981). After disposition of his third petition for post-conviction relief, the trial court found that he had received ineffective assistance of counsel at sentencing, and subsequently, he was resentenced to life imprisonment. Britson then made a motion for a rehearing of his trial-related claims which was denied by the trial court. The Arizona Supreme Court denied his subsequent petition for review. Britson filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of Arizona. The respondents filed an answer and simultaneously moved for summary judgment. The district court granted respondent's motion and dismissed the habeas corpus petition. Britson now appeals that decision.

STANDARD OF REVIEW

A district court's decision on a petition for writ of habeas corpus is reviewed de novo. Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir. 1987). We review the district court proceedings accordingly.

DISCUSSION

Britson claims that the following errors occurred during his state court trial: (1) the jury instructions on self-defense shifted the burden of proof to him; (2) the court improperly denied his motion to sever; (3) his trial and appellate counsel suffered from a conflict of interest; (4) the prosecutor made improper statements during closing argument; (5) he received ineffective assistance of counsel; and (6) the prosecution violated its obligation under the rule in Brady v. Maryland.

Britson asserts that he was denied a fair trial because certain jury instructions shifted the burden of proof from the prosecution to the defense in violation of the rule condemning such practice set down in Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). Britson assigns impropriety to the self-defense instructions which appear in part in the footnote below.¹  He also asserts that this error was compounded by erroneous instructions on the elements of murder, burglary and kidnapping.

Britson relies upon the opinion in Guthrie v. Warden, Maryland Penitentiary, 683 F.2d 820 (4th Cir. 1982). In Guthrie, the Fourth Circuit reversed a district court denial of a writ of habeas corpus because it found that the self defense instruction erroneously relieved the state of its burden of proof. The instructions contained the phrases " [i]f you find," "if you further find," and "then the defendant would be entitled"; phrases similar to those complained of in this action. The Guthrie court noted that these phrases, standing alone, did not "unmistakenly place [ ] the burden of proof on Guthrie." Id. at 825. The court, however, looked at the instructions as a whole and found them improper. Nowhere did the trial court instruct the jury that the burden of disproving self defense rested on the state. Moreover, the court indicated that "the trial court probably intended for the burden to be on Guthrie, because that was the law of Maryland at the time Guthrie was tried." Id.

Turning to the case at bar, the question is whether the instructions as a whole adequately informed the jury that the prosecution had the burden of proof with respect to Britson's claim of self defense. See United States v. Gering, 716 F.2d 615, 622 (9th Cir. 1983); United States v. Tom, 640 F.2d 1037, 1041-42 (9th Cir. 1981). We find that they did. The trial court specifically instructed the jury that the state had the burden of proving beyond a reasonable doubt that Britson did not act in self defense. Furthermore, the trial court gave a general instruction which stated that Britson was presumed innocent, that he need not prove his innocence, and that the state had the burden of proving him guilty beyond a reasonable doubt. The trial court did use the questionable "if you find" language. However, looking at the instructions as a whole, we find that the jury was adequately informed that the burden of proof rested on the state. Hence, no Sandstrom v. Montana burden-shifting error occurred.

Before his trial, Britson made a motion to sever the kidnapping charge from the murder and burglary charges. This motion was denied and Britson asserts that this denial prejudiced his defense.

Under both Arizona state and federal law, the decision on a motion to sever is reviewed for abuse of discretion and the key consideration is whether the defendant has shown that joinder was so prejudicial as to compel the trial judge's discretion to sever. See State v. Lucas, 146 Ariz. 597, 708 P.2d 81 (1985) (stating rule under Rule 13.4, Ariz.R.Crim.P., 17 A.R.S.); United States v. Lewis, 787 F.2d 1318 (9th Cir. 1986) (modified, 798 F.2d 1250) (stating rule under Rule 14, Fed. R. Crim. P.) . Furthermore, given the principle that habeas corpus exists only to remedy error of constitutional dimension, to find prejudice sufficient to require habeas corpus relief in this action, we must determine that Britson's fundamental right to a fair trial as secured by the Fourteenth Amendment has been abridged.²  See Jenkins v. Bordenkircher, 611 F.2d 162 (6th Cir. 1979), cert. denied, 446 U.S. 943 (1980). We make no such finding.

It should initially be noted that we agree with the district court's finding that Britson's present argument regarding severance is different than that made to the trial judge at the time he ruled upon the motion. Before trial, Britson argued that he wished to testify regarding self-defense on the murder and burglary charges but did not want to testify on the kidnapping charge. We find no abuse of discretion and no denial of a fair trial by the trial judge in denying Britson's motion. Joinder is the rule rather than the exception in criminal cases. United States v. Nolan, 700 F.2d 479, 482 (9th Cir.), cert. denied, 462 U.S. 1123 (1983).

Britson's present argument is that he would have testified only on the kidnapping charge but not on the murder and burglary charges because Mrs. Britson was thoroughly impeached. If the counts had been severed, and Britson remained off the stand in his murder-burglary trial, his prior convictions would not have come in during that trial. Although this may have been a more persuasive argument prior to trial, the determination we must make at this stage is whether the trial court's denial of severance was error so prejudicial as to result in a denial of Britson's right to a fair trial. We find it difficult to assess the ruling as error; in any event we find that the requisite prejudice showing was not established.

Britson contends that two separate conflicts of interest affected his representation; one during his trial and one on appeal. We find that the latter contention has no merit and will address only the former.

When the Britsons surrendered, a magistrate appointed the Pima County Public Defender's Office to represent Mr. Britson. At his arraignment, he was represented by Charles Weninger of that office, but James Sherman was ultimately assigned to his case. Mrs. Britson also made an appearance on that day at a bond hearing on an outstanding forgery charge. A magistrate appointed the Pima County Public Defender's Office to represent Mrs. Britson as well. Darwin Nelson of that office represented her at the bond hearing only. After the bond hearing, Mr. Nelson interviewed Mrs. Britson about the charges against her husband. Mr. Nelson was called as a defense witness at trial to impeach Mrs. Britson with the statement she gave at this interview.

If a defendant shows that his attorney was burdened by a conflict of interest, he need not prove prejudice. It is presumed because the conflict itself demonstrates a denial of the right to have the effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 350-51, 100 S. Ct. 1708, 1719, 64 L. Ed. 2d 333 (1980). But prejudice is presumed only where the defendant demonstrates that his "counsel 'actively represented conflicting interests' and that 'an actual conflict of interest adversely affected his lawyer's performance.' " Burger v. Kemp, --- U.S. ----, 107 S. Ct. 3114, 3120 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674 (1984)).

Mr. Nelson's representation of Mrs. Britson was for a short period of time in a bond hearing on an unrelated forgery charge. His relationship as her counsel then terminated. Although we disapprove of the representation of both Britson and his wife by the Pima County Public Defender's Office, there is no evidence in the record of any occurrences during Mrs. Britson's hour-long hearing which would be adverse to the interests of Britson. It is true that Mr. Nelson's relationship with Mrs. Britson may have aided him in obtaining her cooperation in his interview of her regarding the shooting incident. We find such a situation to be most regrettable. However, there has been no showing that Mr. Nelson's interests were in any way adverse to those of Britson at that time. Britson has not proven that his counsel actively represented conflicting interests or that his counsel's performance was adversely affected by an actual conflict of interest.

D. Prosecutorial Misconduct During Closing Argument

Several inappropriate and improper comments were made by the prosecutor during his closing argument at Britson's trial. In particular, we disapprove of the prosecutor's statements as to his personal opinion about the veracity of witnesses, his vouching for the honesty of police officers, and his personal attack on the investigative work of a defense witness as "shabby."

Notwithstanding these concerns, however, we find that the prosecutorial misconduct in this action fell short of the level of constitutional error. In Darden v. Wainwright, --- U.S. ----, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986), the Supreme Court stated:

[I]t "is not enough that the prosecutor's remarks were undesirable or even universally condemned." [citation omitted]. The relevant question is whether the prosecutor's comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974). Moreover, the appropriate standard of review for such a claim on a writ of habeas corpus is "the narrow one of due process, and not the broad exercise of supervisory power." Id. at 642, 94 S. Ct. at 1871.

Darden, 106 S. Ct. at 2472. We stress our disapproval of the prosecutor's remarks. However, we must apply the requisite narrow due process standard of review. Applying such a standard, we find that the prosecutor's improper statements did not so infect the trial with unfairness as to make Britson's conviction a denial of due process.

Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), Britson's claim of ineffective assistance of counsel must meet a two part test. Britson must show that his "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 688, 104 S. Ct. at 2064. Second, Britson must show that the deficient performance prejudiced his defense. The appropriate test for prejudice is whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 695, 104 S. Ct. at 2068.

Britson's claims do not pass this test. There is little substance, if any, to his claims on this issue.

A statement was taken by police from a potential witness, Onesimo Arredondo, about two days after the shooting. Mr. Arrendondo had spent the afternoon before the shooting at the trailer drinking and talking with Joe Chapman, Lynn Anderson, and Mrs. Britson. His statements indicate that everyone at the trailer was drunk, and that Joe Chapman had been kicked out of the trailer by Anderson at knife point for having made sexual advances toward Mrs. Britson. His statement also contained his address, names and general locations of several of his siblings, and the name and location of a place where he worked.

Britson's trial counsel made a motion pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and received a summary of Mr. Arrendondo's statement which did not contain the information regarding his address, work, and siblings' locations. Numerous unsuccessful efforts were made by the defense to locate Mr. Arrendondo. During the first week of the trial, defense counsel received the full transcript of Mr. Arrendondo's testimony which contained the additional information. At that late date, a defense investigator attempted to locate Mr. Arrendondo from this information but was again unsuccessful. Britson's counsel made a motion for mistrial and a request for a continuance, but both were denied.

In Brady v. Maryland, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violated due process where the evidence is material either to guilt or punishment." 373 U.S. at 87, 83 S. Ct. at 1196. There is no doubt that the additional information regarding Mr. Arrendondo should have been made available to Britson's counsel before the trial. The question, therefore, is whether Mr. Arrendondo's testimony would have been material either to guilt or punishment.

United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), is instructive on this issue. In Bagley, the Supreme Court defined the standard of materiality to be applied in determining whether a conviction should be reversed because the prosecutor failed to disclose requested evidence that could have been used to impeach government witnesses. The Court found that "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. at 683, 105 S. Ct. at 3383.

There is some question whether Mr. Arrendondo would have been located even if the defense had received the additional information earlier. However, we assume that he would have been found and look at the testimony it is asserted that he would have given. We find that this testimony is predominantly cumulative evidence. The jury heard testimony concerning drunkenness and Anderson's wielding of a knife from other witnesses. It appears that Mr. Arrendondo may have been the only one who could testify as to Mr. Chapman's sexual advances towards Mrs. Britson. However, we find that the absence of such testimony does not undermine our confidence in the outcome of the trial. It should be noted that Mr. Arrendondo was not a witness to the shooting.

We find that the evidence is not material under the test set out in Bagley. There is not a reasonable probability that, had the additional information been disclosed to the defense earlier, the result of the proceeding would have been different.³ 

CONCLUSION

For the reasons set forth above, we affirm the district court's denial of Britson's petition for habeas corpus relief.

AFFIRMED.

CYNTHIA HOLCOMB HALL, Circuit Judge, dissenting:

Defendant Richard Bud Britson testified that he shot Lynn Anderson in self defense. Britson's wife Adeline ("Ginger") Britson lived in a trailer with Anderson and Joe Chapmen. Ginger testified against Britson at trial. Ginger testified that on the afternoon of Anderson's death, she did laundry and took a nap because she was feeling sick. She also testified that Anderson was working on a car in the yard outside the trailer and that Chapmen and some of his friends were outside the trailer drinking and singing and playing the guitar. She said Chapmen and his friends never came into the trailer, and that after Anderson asked them to leave, there was no quarrel or fight between Chapmen and Anderson.

Onesimo Arrendondo described a very different scene at Anderson's trailer that same afternoon. Arrendondo arrived at the trailer at about 9:00 a.m. and did not leave until about 7:30 p.m. Ginger, Chapmen, Anderson, and he passed time drinking and singing while he played the guitar. Everyone got very drunk. Ginger danced naked for the men and only occasionally wore an open robe. Chapmen fondled Ginger every chance he could, and this angered Anderson, who had a sexual relationship with Ginger.¹  Anderson became infuriated with Chapmen and ordered him to leave the trailer for good. He shoved Chapmen on the couch and then wielded a butcher knife. Arrendondo had already stepped outside, and as Chapmen left the trailer, Anderson yelled " [g]et the Hell out of here and don't you come back no more."

The jury never had an opportunity to consider Arrendondo's testimony, however, because the prosecutor did not supply defense counsel with a transcript of Arrendondo's statement to the police until the first week of trial. This omission prevented the defense from placing a witness before the jury who seriously impeaches the credibility of the only eye witness to Anderson's killing. The prosecutor had earlier supplied defense counsel with a summary of Arrendondo's statement, taken two days after Anderson's death, but the summary did not contain vital information which would have given the defense a greater probability of locating Arrendondo.

Arrendondo told the police that he lived in Morgan City, Louisiana and that he was planning to leave Tucson shortly. He gave the police his home telephone number, address and wife's name. Arrendondo gave the police the name of an employer in Hannah, Louisiana, and he said he had two brothers and a sister. He said one brother and sister lived in Westminster, California. He provided the names of his brothers and sister.

Defense counsel had employed an investigator, Scott Corbell, in 1976 to locate Arrendondo. Corbell did not know that Arrendondo had told the police he planned to leave Tucson. Corbell initially concentrated his search for Arrendondo in the Tucson area, looking in trailer courts, rented rooms, and neighborhood bars. Months later, Corbell received several tips that Arrendondo had left town, and he expanded his search to a six state area. Corbell had been an investigator for 13 years, the last seven in the Public Defender's Office. He spent 80 to 100 hours searching for Arrendondo. After trial began, the prosecution gave the defense the name and address of Arrendondo's sister in California and his home address in Morgan City, Louisiana. Corbell stated that had the prosecution supplied the defense with this information at an earlier date, he believed that Arrendondo would have been located. After the prosecution finally informed the defense of Arrendondo's home address in Morgan City, Louisiana, Corbell traveled there and missed Arrendondo by just one week.

Britson contends that the prosecution's failure to provide the defense with Arrendondo's addresses, locations, and contacts in a timely manner violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The Brady Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218. This court reviews de novo challenges to a conviction based on a Brady violation. United States v. Lehman, 792 F.2d 899, 901 (9th Cir.), cert. denied, 107 S. Ct. 232, 93 L. Ed. 2d 158 (1986).

Materiality under Brady is established where "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3385, 87 L. Ed. 2d 481, 494 (1985); U.S. v. Browne, 829 F.2d 760, 765 (9th Cir. 1987), cert. denied, 108 S. Ct. 1298 (1988). "A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682, 105 S. Ct. at 3385, 87 L. Ed. 2d at 494.

It is well-established that evidence which impeaches the credibility of a government witness must be produced by the prosecution upon request. Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104, 108 (1972); U.S. v. Strifler, 851 F.2d 1197, 1202 (9th Cir. 1988); U.S. v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988). While Arrendondo was not a percipient witness to Anderson's death, his statement is totally at odds with Ginger's description of the afternoon. In addition, Arrendondo's statement provides evidence of Anderson's violent jealousy concerning Ginger. He ejected Chapmen at knife point following Chapmen's repeated sexual advances towards Ginger.

Arrendondo's statement impeaches the credibility of the state's only eye witness to the killing. Ginger testified that she was doing laundry and spending a quiet afternoon at the trailer before Britson arrived. Arrendondo's statement said, however, that she was drunk and dancing naked for three men. Ginger testified that she had never seen Anderson with a knife before Britson arrived, but Arrendondo said that Anderson chased Chapmen from the trailer in Ginger's presence with a butcher knife.

Brady requires that the prosecution produce the exculpatory information "at a time when disclosure would be of value to the accused." United States v. Davenport, 753 F.2d 1460, 1462 (9th Cir. 1985). Disclosure of evidence at trial may allow the defense to make effective use of the exculpatory information. See Gordon, 844 F.2d at 1403; Browne, 829 F.2d at 765. But in this case, the prosecution's delay until trial clearly rendered the information on Arrendondo's whereabouts of little value. The majority does not contend that the defense was in any way remiss or dilatory in its pursuit of Arrendondo. Rather, the opinion concedes that Arrendondo would have been found and his testimony offered to the jury, had the prosecution made timely disclosure. Maj. at 11.

The majority describes Arrendondo's testimony as somewhat cumulative, apparently in an attempt to buttress its conclusion that his testimony would not have been material. Two boys, aged nine and ten-years-old, testified that Anderson had threatened someone else with a knife before the shooting. While this contradicted Ginger's account of that incident, it hardly duplicated Arrendondo's description of the entire afternoon. Furthermore, Arrendondo's testimony on this issue would have likely proven more reliable than the testimony of two young children, whose accounts differed from one another in certain respects. Lastly, Chapmen's trial testimony buttressed Ginger's testimony.² 

Ginger's credibility was fundamental to the prosecution's case against Britson, and Arrendondo's testimony might well have prompted the jury to discount her description of the circumstances surrounding Anderson's killing later that same day. This court cannot say that the jury would have judged Ginger's testimony any differently had Arrendondo testified, but that issue is for the jury to decide, not the prosecution. In addition to undermining Ginger's credibility, the majority concedes that Arrendondo could have testified to Chapmen's sexual advances towards Ginger. Arrendondo could have testified as to Anderson's violent sexual jealousy about Ginger on the day of his death.

In short, I conclude that Arrendondo's absence as a trial witness was solely due to the prosecution's Brady violation and that this error undermines confidence in Britson's conviction. I dissent.