Unpublished Disposition, 874 F.2d 816 (9th Cir. 1989)

MEMORANDUM^* 

Thomas Hensel (Hensel) appeals the district court's decision denying his petition for habeas corpus. The district court issued a certificate of probable cause, consequently we have jurisdiction pursuant to 28 U.S.C. section 2253. We affirm.

Hensel was charged with and convicted of assault in the third degree (placing a person in fear of serious injury with a dangerous instrument) in Alaska state court. Hensel was charged with shooting a gun toward a young boy, Mike Jones, after Hensel attempted a citizen's arrest in the mistaken belief that Jones and a friend were shoplifting at a local store. Russell Fisher, a store customer, and a store clerk remained inside the store after Hensel chased the two boys outside. Neither Russell nor the clerk, Cynthia Powell, heard a gunshot.

The defense in this case relied on a variation of Sir Arthur Conan Doyle's novel involving the barking dog. The great detective, Sherlock Holmes, deduced that it was an "inside job" because the dog did not bark. Here the jury was asked to deduce that no shotgun was fired because witnesses close to the scene did not hear a shot. At trial, Hensel claimed that the two boys fabricated the story. Hensel requested that the trial court allow a jury view of the scene and a demonstration of the discharge of a shotgun outside the store. Hensel intended to demonstrate that the boys were lying by showing that if a gun had been fired the people in the store would have heard it.

The trial court granted the defendant's request for a jury view but denied Hensel's request for a firearms demonstration. The trial judge expressed concern about danger and the lack of similarity of conditions. The alleged assault occurred in February while Hensel wished to do the demonstration in May. The trial judge was concerned that the differing weather conditions rendered the site not suitably similar. Also, the gun fired and the ammunition used were never identified by the two boys. The Judge was concerned that without positive identification of the weapon and type of ammunition used, the demonstration would be misleading. An acoustics expert testified that the weather conditions would not significantly alter the degree to which the gunshot would have carried into the store. Nonetheless, the request for a demonstration was denied.

The trial judge, however, allowed Hensel to introduce evidence regarding an experiment performed by a private investigator retained by Hensel. Both a defense investigator and the new store clerk testified that they heard the test shot fired. The new clerk, however, also testified that the gunshot sounded like a "little pop" which she might not have heard had she not been attentive because of the investigator's actions.

The trial judge again denied Hensel's request for a demonstration. The judge relied in part on a safety rationale, and the illegality of firing a shotgun. She also ruled, however, that a demonstration could not duplicate the conditions at the time of the assault, particularly the level of attention or inattention possessed by the original clerk and other witnesses.

A. Hensel exhausted his state remedies.

The State argues that Hensel failed to preserve his federal claims by his failure to assert them before the trial court. The government alleges that Alaska's contemporaneous objection rule requires all claims to be raised before the trial court or they are waived.¹  See Hohman v. State, 669 P.2d 1316, 1325 (Alaska Ct.App.1983) (appellant's failure to argue the same theory of admissibility of evidence violated Rule 103).

The State's arguments are without merit. First, Hensel raised the federal claims generally before the trial court. Hensel claimed a right to establish a reasonable doubt by having the jury witness the exculpatory evidence. Also, the trial court informed Hensel's attorney that he had objected sufficiently to preserve his right to appeal. While Hensel's claim was not precisely phrased in terms of his constitutional right to a fair trial or to confront witnesses, Hensel described the general theory. A claim is fairly presented if the defendant has described the operative facts and the general theory. The defendant need not invoke talismanic phrases to identify the federal claim. Tamapua v. Shimoda, 796 F.2d 261, 262-63 (9th Cir. 1986). Hensel's objections at trial were sufficient to present the issue to the trial court.

Hensel also raised his constitutional claims in his brief before the Alaska Court of Appeals and in his petition for review by the Alaska Supreme Court. The Alaska Court of Appeals never discussed Hensel's federal claims, and the Alaska Supreme Court denied review. Exhaustion, however, occurs once the claim is fairly presented to the state's highest court even if the state court ignores it. Smith v. Digmon, 434 U.S. 332, 333 (1978) (per curiam).

B. Hensel's Constitutional Claims.

Hensel claims that the trial court's refusal to grant the demonstration violated his due process rights to a fair trial, to present his theory of defense, and to confront witnesses. Hensel's arguments are without merit. The trial judge excluded the evidence under Alaska Rule of Evidence 403, because she found that the possibility of prejudice and potential confusion of the issues outweighed the probative value of the proposed demonstration. Alaska Rule 403 is an established rule of evidence identical to Fed.R.Evid. 403, which confers wide discretion on the trial judge. See Fed.R.Evid. 403; see also United States v. Rubio, 727 F.2d 786, 798 (9th Cir. 1983) (court's balancing of probative value of evidence against its prejudicial effect reviewed for an abuse of discretion).

The defendant's right to present evidence is not absolute. See Perry v. Rushen, 713 F.2d 1447, 1450 (9th Cir. 1983), cert. denied, 469 U.S. 838 (1984). " 'In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt or innocence.' " Id. (quoting Chambers v. Mississippi, 410 U.S. 284, 302 (1973)) (emphasis added). In Perry, this court stated:

A defendant must show that his interest clearly outweighs the state's before we will interfere with routine procedural matters. Thus, a separate consideration of due process will rarely be needed in day-to-day application of the rules of evidence.

Id. at 1453 (citations omitted). Hensel fails to demonstrate the compelling circumstances necessary to override a state's interest in the application of an established rule of evidence.

Hensel was not denied a fair trial or the right to present his defense. The jury knew that the claimed that the boys were lying because no one heard a shot. Hensel was also allowed to present testimony about his private experiment. The trial judge's decision did not render the trial fundamentally unfair. See Kealohapauole v. Shimoda, 800 F.2d 1463, 1466 (9th Cir. 1986), cert. denied, 479 U.S. 1068 (1987).

Likewise, the trial court's decision did not violate Hensel's right to confront witnesses. The confrontation clause guarantees a criminal defendant the opportunity to cross-examine witnesses effectively and to expose their motivation in testifying. Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). This right is not absolute, however, and the trial court may limit the inquiry when appropriate. See United States v. Dadanian, 818 F.2d 1443, 1449 (9th Cir.), modified in part on unrelated grounds, 856 F.2d 1391 (1987). Hensel was allowed to cross-examine Moore and Jones about their alleged motive to lie based upon Hensel's attempted citizen's arrest. Also, Hensel was allowed to introduce evidence of the experiment. The court did not unconstitutionally impinge Hensel's right to cross-examination.

The judgment is AFFIRMED.