Unpublished Disposition, 865 F.2d 265 (9th Cir. 1987)

Raymond J. Skinner, Jr., an Arizona state prisoner, appeals the district court's dismissal of his petition for a writ of habeas corpus. Skinner alleges that his manslaughter conviction violated due process because the police destroyed potentially exculpatory evidence and because the jury was tainted by a juror's misconduct. He also claims that he was denied the effective assistance of counsel, in violation of the sixth and fourteenth amendments, because his attorney failed to object to unfairly prejudicial evidence. We affirm.

* On October 28, 1982, Skinner struck and killed Sharon Smith with his pickup truck as she walked across a Phoenix street. A subsequent test with an Intoxilyzer breath analysis machine revealed that Skinner's blood alcohol level was .18. Skinner was arrested.

At the police station, Skinner was advised of his right under Arizona law to have a sample of his breath taken and preserved for seven days.¹  See Baca v. Smith, 124 Ariz. 353, 604 P.2d 617 (1979). Neither Skinner nor his agent picked up the sample from the police within seven days, and it was destroyed in the normal course of business.

At trial, Skinner's attorney moved to suppress evidence of his blood alcohol level on the grounds that the police had destroyed potentially exculpatory evidence. The motion was denied. Skinner was convicted of manslaughter and sentenced to ten years in prison. Ariz.Rev.Stat.Ann. Sec. 13-1103(A) (1) (1978). He moved for a new trial based on the misconduct of juror Constance Phillips, who failed to respond to a question on voir dire regarding knowledge of crime victims despite her daughter's apparent involvement in a rape case. The motion was denied.

Skinner appealed to the Arizona Court of Appeal, which affirmed his conviction by memorandum opinion. The Arizona Supreme Court denied his petition for review on February 27, 1985.

On September 19, 1985, Skinner petitioned for a writ of habeas corpus under 18 U.S.C. § 2254 in the district court for the district of Arizona. On November 9, 1987, the district court, adopting a magistrate's findings, dismissed the petition. Skinner timely appeals to this court, which has jurisdiction. 28 U.S.C. § 2253; Fed. R. App. P. 4(a) (1), 22(b). Smith raised and exhausted his claims in state proceedings. We review a petition for writ of habeas corpus de novo. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986), cert. denied, 108 S. Ct. 198 (1987).

II

Skinner first claims that he was denied due process because the police destroyed exculpatory evidence, the second breath sample. He argues that this sample would have impeached the state's otherwise uncontradicted evidence of his blood alcohol level.

In California v. Trombetta, the Supreme Court considered whether California's failure to preserve breath samples taken in the course of Intoxilyzer testing was a due process violation that did not "comport with prevailing notions of fundamental fairness," by giving a criminal defendant "a meaningful opportunity to present a complete defense." Id., 467 U.S. 479, 485 (1984). The Court held that California was not required to take and preserve breath samples from motorists charged with DWI, because such evidence was not "expected to play a significant role in the suspect's defense." Id. at 488. "To meet this standard of constitutional materiality ... evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 489. The Court found that preservation of breath samples failed to meet this two-part test, because 1) evidence on the Intoxilyzer's accuracy, as designed and maintained, led to the conclusion that " [o]nce the Intoxilyzer indicated that respondents were legally drunk, breath samples were much more likely to provide inculpatory than exculpatory evidence," id., and 2) the defendants could challenge the reliability of the Intoxilyzer in other ways, such as by alleging faulty calibration or operator error. Id. at 490.

We have applied Trombetta, directly holding that the government was not required to preserve currency that a sniffer dog had indicated held traces of cocaine, because the evidence "would not necessarily have been exculpatory," and because the appellant could have challenged the dog's reliability in other ways. United States v. Dela Espriella, 781 F.2d 1432, 1437-38 (9th Cir. 1986) (applying Trombetta to a direct appeal of a federal conviction); see also United States v. Alderdyce, 787 F.2d 1365, 1370-71 (9th Cir. 1986).

Arizona police are required by state case law to advise a suspect that a breath sample must be taken for the suspect's use if he so requests, and that the sample will be preserved for seven days, during which time the suspect may claim it. Baca, 604 P.2d at 618, 620-21.

This court must apply the federal due process standard of Trombetta, not the higher Arizona standard. Skinner's due process argument fails under the federal standard. Trombetta is directly on point. Breath samples do not have apparent exculpatory value, and the validity of Skinner's blood alcohol test could have been (and was) challenged in other ways. Since Arizona did not have to preserve the sample at all, the reasonableness of the state's failure to preserve it for longer than seven days is not relevant.

Skinner argues that he could not practically exercise his right to the sample because he was in custody during the entire week, and was not provided with counsel. Even assuming this is true, a due process violation does not necessarily follow. Skinner knew he had to pick up the sample within seven days, and he presumably could have arranged even from inside prison walls for someone to pick it up.

III

Skinner next argues that the misconduct of juror Constance Phillips fatally tainted the jury's verdict. During voir dire, the judge asked numerous questions of potential jurors, addressed to the entire panel, regarding their status as previous crime victims, or as friends or relatives of crime victims. Phillips did not respond to these questions. She became a member of the jury. After both sides had rested, the judge received a note from Phillips stating, "My eleven year old daughter is subpoened [sic] to Mesa court tomorrow morning for a [sic] attempted rape." The judge excused Phillips from the jury and seated an alternate.²  Skinner alleges that Phillips was biased as a result of her daughter's court appearance, that the bias was communicated to other jurors, and that the jury was unable properly to judge Skinner's case because it was worried about Phillips' daughter.

Even assuming that Phillips failed properly to disclose her daughter's involvement in a rape case, Skinner has not shown, and there is no reasonable possibility he would be able to show, bias resulting from the episode against a defendant in a vehicular manslaughter case sufficient to challenge for cause. See McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984); Lincoln v. Sunn, 807 F.2d 805, 815 (9th Cir. 1987).

In addition, Phillips did not participate in the deliberations. Even if the bias of a particular juror is presumed, habeas corpus relief is not available when that juror did not participate in the verdict. Linden v. Dickson, 287 F.2d 55, 61 (9th Cir. 1961) (alternate juror alleged to be biased). Skinner's allegations as to a taint of the entire jury are purely speculative; even assuming that the jury members were concerned about Phillips' daughter, there is absolutely no evidence that they failed to reach a fair verdict in Skinner's case as a result.

IV

Skinner also contends that his attorney provided ineffective assistance of counsel in violation of the sixth and fourteenth amendments by failing to object to certain allegedly prejudicial testimony.³  The testimony at issue was offered by Dr. Thomas Jarvis, Deputy Medical Examiner for Maricopa County, who had autopsied the victim. Dr. Jarvis testified that at the time of autopsy the decedent had a small burr hole in her scalp, that much of her skin had been "harvested," and that her eyes and kidneys had been removed for the purposes of donation.

The Supreme Court provided the standards for deciding an ineffectiveness of counsel claim in Strickland v. Washington, 466 U.S. 668, 687 (1984). A convicted defendant must show that his attorney "made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Id. at 687. The test is that of "reasonably effective assistance" within the "wide range of professional assistance." Id. at 687, 689; see United States v. Murray, 751 F.2d 1528, 1535 (9th Cir.), cert. denied, 474 U.S. 979 (1985). Strickland requires a presumption that the challenged action or inaction was sound trial strategy. Strickland, 466 U.S. at 689.

The decision of Skinner's attorney not to object to this evidence was a tactical decision within the range of reasonable representation. See Weygandt v. Ducharme, 774 F.2d 1491, 1493-94 (9th Cir. 1985) (applying Strickland; failure to object to prosecutor's improper closing remarks not constitutional error); Harried v. United States, 389 F.2d 281, 286-87 (D.C. Cir. 1967) (failure to object to photographs of decedent not ineffective assistance of counsel).

Under Strickland 's second prong, the petitioner must be prejudiced in that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. Skinner makes no such showing here. The testimony at issue was immediately followed by fairly lengthy, graphic, probative, and clearly material evidence as to the cause of the victim's death (severe brain injury). The added effect of the contested testimony was not material.

Skinner's brief can be read to assert other claims, but none of these were raised in the district court, and we do not consider them. Skinner also makes various allegations and claims for relief based on apparent communication problems between himself, the district court, and this court. None deserves further comment.

CONCLUSION

The appellant was not denied due process by the destruction of his breath sample or by the alleged misconduct of a juror. He was not denied the effective assistance of counsel due to his attorney's failure to object to certain testimony. The district court's denial of the writ of habeas corpus is affirmed.