Unpublished Disposition, 912 F.2d 468 (9th Cir. 1990)

MEMORANDUM^* 

Melvin Clark appeals from the district court's order dismissing his petition for a writ of habeas corpus. Clark argues that his conviction in a state court jury trial was constitutionally defective because he was tried in prison clothing and because certain testimony concerning a prior crime was improperly admitted into evidence. We affirm.

I Background

The record reveals that Clark has a history of violent crime. On January 19, 1976, one "Brenda K." arrived home late at night and was just about to turn on a light in her kitchen when Clark grabbed her, turned her around, and placed a knife against her throat. Clark then pushed Ms. K. into her bedroom, covered her face with a blouse, and raped her. Subsequent investigation revealed that Clark had entered the apartment through a window in the kitchen.

Ms. K. arose after she believed that Clark had left her apartment. But Clark was still in Ms. K.'s living room. Clark once again raped Ms. K. in much the same manner that he had the first time.

After the second rape, Clark began searching Ms. K.'s apartment for valuables. When the victim began screaming at him, Clark ran out of the apartment by the back door.

Clark was apprehended approximately 15-20 minutes later. Ms. K. identified him as the man who had raped her.

On October 3, 1981, while Reginald Forchette and his family were asleep in their home, Clark broke into their home. Forchette went into the living room, where the lights were still on, and saw Clark. Clark ran by Forchette, and Clark cut Forchette in the chest with a sharp instrument as he did so. Clark escaped through a window which had been left open. It was later discovered that forty dollars was missing from Mrs. Forchette's purse, which had been on the dining room table.

On October 18, 1981, "Denise D." was awakened in her apartment in the middle of the night by an intruder, later identified as Clark. Clark placed a pillow over Ms. D.'s face, poked a sharp object into her side, and told her not to scream. A struggle ensued in which Clark choked Ms. D. to the point at which she could no longer resist. Clark then raped Ms. D.

When Clark finally stood up, Ms. D. ran out of the front door of her apartment where she met a policeman. A concerned neighbor who had heard the struggle had apparently called 911 and the police had responded. Clark was apprehended as he attempted to escape out the apartment window.

Subsequent investigation revealed that five dollars was missing from Ms. D.'s purse, which had been left on her kitchen table. The investigation also revealed that Clark had entered the apartment through an open window. When it was later discovered that Clark resembled the description of the man who assaulted Forchette, a photographic lineup was assembled. Forchette was summoned to the police station where he identified Clark's photograph.

In 1982, Clark was tried in state court for the crimes against Forchette and Ms. D. During the trial, the court allowed Ms. K. to testify about the circumstances of her 1976 rape by Clark. Clark was convicted of one count of rape, two counts of burglary, and one count of assault with a deadly weapon, and was sentenced to thirty-six years in prison. Clark appealed, and the California Court of Appeal reversed all counts on the ground that the trial court had not granted Clark sufficient time to prepare his defense.

In 1983, before Clark's second trial, the trial court granted his motion for self-representation. Clark's motion for funds to purchase street clothing for retrial was denied. The trial court, however, ordered that Clark be provided with civilian clothing. Ms. K. was again allowed to testify against Clark as to the circumstances of her rape.

In 1984, a jury again convicted Clark of rape, two counts of burglary, and of the lesser-included offenses of assault with a deadly weapon and assault and battery. After admitting to six prior convictions, Clark was sentenced to thirty-five years, four months in prison. Clark again appealed, but this time the state Court of Appeal upheld the conviction. Clark filed a petition for review in the California Supreme Court. The petition was summarily denied.

In 1987, Clark petitioned for a writ of habeas corpus in the United States District Court for the Central District of California. After response by the appellees, the district court dismissed the petition on the merits on September 8, 1988.

Clark timely appealed. We subsequently issued a certificate of probable cause under 28 U.S.C. § 2253, thereby providing this court with jurisdiction to review the petition.

II Exhaustion

As a preliminary matter, appellees argue that Clark has not exhausted his state remedies and that his petition should therefore be dismissed. We disagree.

On his appeal in state court, Clark argued that he was denied a fair trial because the admission of Ms. K.'s testimony as evidence against him was prejudicial. He now argues also that the trial court failed to balance properly the probative value of Ms. K.'s testimony against its prejudicial effect before admitting it into evidence, and that the court failed properly to caution the jury to limit its use of that evidence.

Appellees contend that Clark's new arguments raise issues which were not presented in the California appeal. They argue that Clark has not exhausted his state remedies as to these issues.

The record, however, contradicts appellee's assertions. On appeal from his second trial to the California Court of Appeal, Clark stated in regard to the prior rape evidence: "Even if relevant to an ultimate fact in dispute, such evidence 'must be received with caution ..., and admitted only when its probative value outweights [sic ] its prejudicial effect.' " Appellant's Supplemental Brief at 6, People v. Clark, No. B008775 (Cal.Ct.App.) (emphasis in original) (quoting People v. Thompson, 27 Cal. 3d 303, 318, 611 P.2d 883, 888, 165 Cal. Rptr. 289, 296 (1980)). Clark further stated that " [t]he only other reason for using the prior act evidence was to allow it to bolster the witnesses [sic ] credibility. However, it is error to allow the jury to consider the prior act solely to bolster the witnesses [sic ] credibility or to impeach the defendant." Id. at 11.

While such statements are far from in-depth, full-scale arguments on these points, they fairly present the substance of Clark's federal habeas claims to the state court. See Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir. 1986). Clark's habeas and state claims need not be perfectly identical. See id. We conclude that Clark has exhausted his state remedies; his habeas petition may therefore properly be heard in federal court.

III Claimed Evidentiary Errors

Clark argues that the trial court committed several errors when it admitted Ms. K.'s testimony about the circumstances of her rape. Clark first contends that Ms. K.'s testimony was cumulative and highly prejudicial. He also asserts that the prior sexual assault was not sufficiently similar to the offense charged to allow for its admission, that the trial court did not properly weigh the appropriate factors before making its ruling admitting the testimony, and that the trial court did not properly instruct the jury on the limited use of the testimony.

None of these alleged errors give rise to habeas corpus relief in this case. Habeas corpus relief on state court evidentiary rulings is appropriate only when federal constitutional rights are affected. See Lincoln v. Sunn, 807 F.2d 805, 816 (9th Cir. 1986). For the reasons set forth below, the trial court committed no constitutional errors by admitting the testimony of Ms. K.

* Clark contends that he was denied a fair trial because Ms. K.'s testimony regarding Clark's sexual assault upon her was cumulative on the issue of his identity and was extremely prejudicial. Clark explains that because he used the consent defense in his first trial, the testimony of Ms. K. was relevant there to prove identity. Clark asserts that at his second trial, however, he had changed his defense from consent to misidentification. Because of this change in defense, Clark argues, Ms. K.'s testimony was merely cumulative on the issue of identity in the second trial, as there had already been testimony that it was Clark who was apprehended as he was climbing out of Ms. D.'s apartment window.

We perceive no constitutional error. Clark is not entitled to habeas corpus relief on the basis of admitting testimony of other crimes unless the admission was arbitrary or fundamentally unfair. See Colley v. Sumner, 784 F.2d 984, 990 (9th Cir.), cert. denied, 479 U.S. 839 (1986). The admission of Ms. K.'s testimony was neither arbitrary nor fundamentally unfair. The state's purpose in introducing Ms. K.'s testimony was the same in both trials: to prove the identity of the rapist. This is entirely appropriate under well-established rules of evidence. See, e.g., Cal.Evid.Code Sec. 1101(b) (evidence of prior "bad acts" may be admissible to prove, among other things, the identity of the perpetrator). Despite Clark's new defense, identity was still at issue in the second trial. Clark placed his identity at issue when he asserted that Ms. D. never saw him during the rape, and when he asked for a continuance in open court to locate an alibi witness before Ms. K. testified. See Reporter's Transcript on Appeal, People v. Clark, No. A083548 (Cal.Super.Ct.) at 102-03 197-99 [hereinafter "Reporter's Transcript"].

B

We also reject Clark's suggestion that the trial court's ruling to admit Ms. K.'s testimony amounted to constitutional error because the crimes were not sufficiently similar to render Ms. K.'s testimony probative on the issue of identity. In both cases, Clark had been armed with a knife or other sharp object and had entered a secured residence by removing the window screen and forcing the window open. In both instances, Clark had covered the victim's face to prevent his identification and had taken or tried to take cash. Evidence of a defendant's past criminal conduct has been admitted in cases where the characteristics of the past and charged crimes were less distinctive than in this case. See, e.g., United States v. Johnson, 820 F.2d 1065, 1069-71 (9th Cir. 1987) (two bank robberies committed three months apart, both involving change of a five-dollar bill); Colley, 784 F.2d at 990 (defendant charged in two sexual assaults had grabbed each victim's hair, choked the victim, and expressed remorse after each attack).

C

Clark also contends that the trial court committed constitutional error by not properly performing its task of weighing the probative value of the testimony against its prejudicial effect. We disagree.

It is not clear upon what basis Clark would attach his constitutional right to have the trial judge weigh the probative value of evidence against its prejudiciality in a particular manner. We need not guess at Clark's reasoning, however, since we have often recognized that a trial court need not mechanically recite its reasons for admitting certain testimony. See, e.g., United States v. Sangrey, 586 F.2d 1312, 1315 (9th Cir. 1978). It is sufficient if the record, as a whole, demonstrates that the trial judge weighed the competing concerns. Id. Here, the record demonstrates that Clark objected to Ms. K.'s testimony and that the court properly considered and rejected Clark's objections. See Reporter's Transcript at 118. Accordingly, there is no constitutional violation here.

D

Clark next contends that the trial court should have given limiting instructions to the jury at the time Ms. K.'s testimony was admitted. A limiting instruction was included with the final jury instructions, however, and we have considered this to be sufficient. See Jeffers v. Ricketts, 832 F.2d 476, 481 (9th Cir. 1987) ("Under the trial court's instruction, the jury was not permitted to consider the evidence of bad acts to prove Jeffers' character in order to show that he acted in conformity with that character. The district court did not err in denying habeas relief."), reversed on other grounds, sub nom. Lewis v. Jeffers, --- S. Ct. ----, 1990 WL 85385 (June 27, 1990).

IV Prison Clothing

We next turn to Clark's contention that the trial court violated his right to a fair trial when it allegedly compelled him to stand trial in jail clothing.

* On September 19, 1983, before commencement of his second trial, Clark filed a motion requesting funds to purchase clothing for the retrial. In response, California State Superior Court Judge Rittenband ordered that " [d]efendant's motion to purchase street clothes for retrial is denied in part as to the granting of funds, however, civilian clothing will be provided for the defendant." See Clerk's Transcript, People v. Clark, No. B008775, at 12 [hereinafter "Clerk's Transcript"]. Clark was never provided with civilian clothing.

The record after this date is not entirely clear and reflects what appears to have been a misunderstanding.

At a hearing requested by the prosecution, Bailiff John Wilson was called to testify. Wilson testified that he discussed the issue of civilian clothing with Clark on May 29, 1984. Wilson stated that, on that day, Clark was to begin his trial in the courtroom of California State Superior Court Judge Weiss.¹  Wilson stated that he noticed, before any proceedings began in the courtroom, that Clark was wearing jail garb. Wilson testified that he then asked Clark whether he had any civilian clothes for trial. Id. at 237. According to Wilson, Clark responded "No" and, after a pause, asked the bailiff how he could obtain civilian clothes if he wanted them. Id. Wilson indicated that he told Clark that he had several alternatives, such as moving for an order that civilian clothing be supplied by the court, family, or friends. Id. Wilson asked Clark whether he had any family or friends who could provide him with civilian clothing and Clark had responded that he did not. Id.

According to Clark, following the encounter with Bailiff Wilson, Clark renewed his motion on May 29, before Judge Weiss. Id. at 241. There was no record prepared of this proceeding. The assistant district attorney denied that Clark had raised the issue of civilian clothing before Judge Weiss. Id. at 242.

Subsequently, on June 6, 1984, Clark asked the court before trial whether it would direct the assistant district attorney to give him the clothes he was wearing when arrested. Reporter's Transcript at 103. After ascertaining that the assistant district attorney had the clothes, the court told Clark that he could have them. Id. The assistant district attorney apparently thought that Clark intended to wear the clothes, and that by making them available to Clark, he had complied with the court's previous order to provide Clark with civilian clothes. Id. at 191. Clark indicated he desired the clothes in which he had been arrested as evidence and that he had still expected civilian clothes although he did not say so at that time. Id. at 192. Subsequently, Clark moved for a new trial based upon his being compelled to appear before the jury in prison garb. Contrary to the State's assertions now, the trial court made no factual findings on the issue, but summarily denied Clark's motion.

B

A defendant is not constitutionally required to appear before a jury in civilian clothes. Estelle v. Williams, 425 U.S. 501, 512 (1976); United States v. Rogers, 769 F.2d 1418, 1423 (9th Cir. 1985). Thus, the fact that Clark stood trial in jail clothing is not by itself a constitutional violation.² 

Nevertheless, a defendant's appearance in jail clothing at trial is not in accord with due process principles where his appearance in such clothing is compelled. Felts v. Estelle, 875 F.2d 785 (9th Cir. 1989).

In Felts, this court held that "the failure to provide a defendant with suitable clothes or adequate funds for their purchase constitutes state compulsion." Id. at 786. We held such a failure amounts to compulsion unless the defendant's failure to make an objection to the court regarding the prison clothes is sufficient to "negate the presence of compulsion." Williams, 425 U.S. at 513; see Felts, 875 F.2d at 786 (" [i]f Felts had clothes available and elected not to wear them at trial, a court may reasonably infer that his decision was predicated upon a conscious attempt to elicit sympathy from the jury."). In the absence of error that renders a trial fundamentally unfair, however, we affirm a conviction " [w]here a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt...." Rose v. Clark, 478 U.S. 570, 579 (1986); see Williams, 425 U.S. at 506-07 (citing Chapman v. California, 386 U.S. 18 (1967)). Here the evidence against Clark satisfies this difficult standard.

Clark was identified at the scene of the crime and again at trial by Ms. D. as her rapist. Ms. D.'s neighbor testified that he saw Clark exit Ms. D.'s apartment window. Clark was arrested as he attempted to exit Ms. D.'s window immediately after the crime was committed. At trial, Ms. K. identified Clark as her assailant in a rape which was committed under similar circumstances as the one against Ms. D. Reginald Forchette, a third victim, also identified Clark as his assailant from a photographic lineup and again at trial.

Although Clark cross-examined these witnesses in an attempt to demonstrate a mistake, they remained steadfast in their identification of Clark as their assailants. Clark's sole defense was misidentification and police fabrication. He offered one witness, the police officer who put together the photographic lineup shown to Forchette, in an attempt to demonstrate that the sample was not a fair one. Based upon our review of the entire record, we find the evidence against Clark to be overwhelming. We conclude that any error was "harmless beyond a reasonable doubt." See Pope v. Illinois, 401 U.S. 497, 504 (1987).

AFFIRMED.