Unpublished Disposition, 899 F.2d 1225 (9th Cir. 1990)

MEMORANDUM^** 

Henry Nathan, Jr. appeals the district court's denial of his petition for a writ of habeas corpus. He argues that his constitutional rights were violated by the trial court's preclusion of his alibi witnesses, the prosecutor's subsequent comments on the absence of alibi witnesses, and the jury's doubts regarding the strength of the State's case. We have jurisdiction under 28 U.S.C. § 2253 (1982), and we affirm.

I Standard of Review

The court generally reviews a district court's denial of a petition for writ of habeas corpus de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989). In reviewing factual findings, however, the court applies a clearly erroneous standard. Id.

II Preclusion of Alibi Witnesses

In refusing to permit appellant's alibi witnesses to testify, the court relied on Nevada Revised Statutes Sec. 174.087, which permits exclusion of alibi evidence if a defendant fails to provide certain information about proposed alibi witnesses at least ten days before the trial.

In Taylor v. Illinois, 108 S. Ct. 646 (1988), the Supreme Court rejected the argument that preclusion of witnesses is an impermissible sanction for a discovery violation. While noting that it was not announcing "a comprehensive set of standards," the Court did state that a court should balance a defendant's right to have witnesses testify in his or her behalf against such "countervailing public interests" as " [t]he integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence; the interest in the fair and efficient administration of justice; and the potential prejudice to the truth-determining function of the trial process." 108 S. Ct. at 655.

The Court noted that a trial judge could "certainly insist on an explanation for a party's failure to comply with a request to identify his or her witnesses in advance of trial," and could rightfully exclude the testimony where a party's omission was willful and motivated by a desire to obtain certain tactical advantages. Id. at 655-56. The Court observed that " [t]he simplicity of compliance with the discovery rule is also relevant." Id. at 656.

In light of these factors, the trial court did not err in preventing appellant's witnesses from testifying. The timing of appellant's request--after the testimony of the State's primary witness--raises a question as to the reliability of the proposed evidence. Moreover, appellant did not offer any excuse for why it took him more than three months after the evening of the alleged crime to produce the names of the individuals--including his girlfriend--with whom he claimed he had been playing cards on the evening in question. Permitting appellant to introduce testimony in such circumstances would hinder "the fair and efficient administration of justice." See Wardius v. Oregon, 412 U.S. 470, 473 (1973) (by increasing the evidence available to parties, notice-of-alibi rules enhance the fairness of the adversary system). Finally, the relatively simple requirements mandated by section 174.087 weigh against permitting appellant's witnesses to testify.¹ 

III Prosecutorial Misconduct

In assessing charges of improper comments by the prosecutor, "An 'examination of the entire proceedings' must be made to determine whether the prosecutor's remarks rendered the proceedings 'fundamentally unfair.' " Campbell v. Kincheloe, 829 F.2d 1453, 1457 (9th Cir. 1987) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974)), cert. denied, 109 S. Ct. 380 (1988). This court has also noted that "A trial judge may cure the effect of improper prosecutorial comments ... 'by giving appropriate curative instructions to the jury.' " United States v. Endicott, 803 F.2d 506, 513 (9th Cir. 1986) (quoting United States v. McKoy, 771 F.2d 1207, 1213 (9th Cir. 1985)).

Even if we assume, without deciding, that the prosecutor's comments were improper, they clearly did not render the trial "fundamentally unfair." In Colley v. Sumner, 784 F.2d 984 (9th Cir.), cert. denied, 479 U.S. 839 (1986), which also involved a prosecutor's reference to the absence of an alibi witness, the court noted that the defendant first mentioned the absent alibi witness (his fiancée), and that the jurors would probably have "note [d] her absence and speculate [d] on its ramifications" even without the prosecutor's comments. 784 F.2d at 991. In the present case, as in Colley, "any negative inferences that the [prosecutor's] comment might have encouraged could have been drawn independently by the jury." Id.

In addition, the trial judge in this case instructed the jury that "The evidence which you are to consider in this case consists of the testimony of the witnesses, the exhibits, and any facts admitted or agreed to by counsel." He also informed them that, "Statements, arguments and opinions of counsel are not evidence in the case." These instructions were sufficient to cure any negative effect caused by the prosecutor's remarks.

IV Juror's Comments

This court has stated that, "In general, jurors will not be heard to impeach their verdict. This means particularly that juror affidavits or testimony will not be received concerning the manner in which the jury arrived at its verdict." Traver v. Meshriy, 627 F.2d 934, 941 (9th Cir. 1980) (citation omitted).²  The fact that the jurors had difficulty reaching a decision does not present a basis for a new trial. In addition, the foreman's comment that the outcome would have been different if the jury had heard alibi witnesses is sheer speculation, as it is impossible to predict how the witnesses might have affected the jury's decision.³ 

AFFIRMED.