Unpublished Disposition, 867 F.2d 612 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 867 F.2d 612 (9th Cir. 1989)

Alexander MacNab DALGLISH, Petitioner-Appellant,v.Lloyd BRAMLETT, et al, Respondents-Appellees.

No. 88-1846.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 16, 1988.Decided Jan. 18, 1989.

Before GOODWIN, Chief Judge, and SNEED and HUG, Circuit Judges.


MEMORANDUM* 

Dalglish, who was convicted of first-degree murder by an Arizona state court, appeals from the dismissal of his petition for a writ of habeas corpus. Appellant claims that he was entitled to an evidentiary hearing in the district court on three issues. He also claims that the district court erred in finding his confession voluntary. He further claims that the district court erred in rejecting his claim that the state court denied him due process by failing to grant him a mistrial or continuance after it had changed its ruling on a suppression motion during trial. We affirm.

Dalglish was indicted for murder after he shot a man he suspected of double crossing him in a narcotics deal. He claimed he shot in self defense when the victim reached for what Dalglish claims he thought was a gun.

The issues in this case all relate to Dalglish's pretrial motion to suppress his statement to Phoenix, Arizona police officers Gus Oviedo and Errol Hawkins. Appellant argued for suppression on two grounds: 1) that his statement was induced by the interrogating officers' promise that appellant's girlfriend would be released from custody if appellant made a statement showing that she was not involved in the crime, and 2) that the statement was the fruit of an illegal arrest not based upon probable cause.

A month before trial, the state court granted appellant's motion to suppress, but after the trial had begun, the court reversed its previous ruling and denied appellant's motion to suppress. At that time, the court made no explicit finding as to the voluntariness of Dalglish's statement. Dalglish moved for a mistrial, or in the alternative, a continuance to afford him an opportunity to reevaluate his defense strategy in light of the court's ruling. Both motions were denied.

During the course of the trial, Detective Oviedo testified concerning the defendant's statement to him. Oviedo testified that the defendant's response to the detective's request for a statement was that "he didn't have anything to say, he didn't know anything about it." At this point, appellant's counsel objected, asserting that Detective Oviedo's testimony constituted new evidence that Dalglish had asserted his Miranda right to remain silent. He took the position that the state now had to show that Dalglish had waived his right after invoking it. After a lengthy discussion of the issue in chambers, the trial judge ruled that the defendant had waived his Miranda rights by speaking to the officers.

Dalglish claims that he was entitled to an evidentiary hearing on three separate issues:

1. Whether his confession was induced by a promise that his girlfriend would be released.

2. Whether he invoked his right to remain silent and thus required the state to show a subsequent waiver.

3. Whether the trial court violated due process in its handling of the motion to suppress.

Townsend v. Sain, 372 U.S. 293 (1963), identified the circumstances under which a federal habeas petitioner has a right to an evidentiary hearing. Townsend's criteria were for the most part codified in 28 U.S.C. § 2254(d), which provides that factual determinations by a state court are to be accorded a presumption of correctness unless the applicant for the writ can establish one or more of eight specific conditions. The conditions relevant here include:

(1) that the merits of the factual dispute were not resolved in the State court hearing;

(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;

(3) that the material facts were not adequately developed at the State court hearing;

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(6) that the applicant did not receive a full, fair and adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due process of law in the state court proceeding [.]

28 U.S.C. § 2254(d).

A. Claim that Confession was Induced by Promise

There can be no doubt that Dalglish was fully heard on his coerced confession claim. In his memorandum in support of his motion to suppress, Dalglish's counsel argued that the confession was the product of an improper promise, and he devoted considerable questioning and argument to this point during the pretrial suppression hearing. Appellant's best argument that he was entitled to a district court hearing on his promise-induced confession claim is that the trial judge did not make an explicit finding regarding voluntariness either when he initially granted appellant's suppression motion or when he later reversed that ruling, and therefore that the merits of the factual dispute were not resolved in the State court hearing." 28 U.S.C. § 2254(d) (1). However, the record does not support such a theory.

The suppression motion was argued on two grounds: lack of probable cause and involuntariness. Because the trial judge reversed his ruling on the motion in response to the presentation of additional evidence of probable cause, it is logical that the motion was initially granted on the probable cause ground and that the court was not persuaded by appellant's voluntariness argument. Though the trial judge did not explicitly state this when he reversed the ruling, he referred to such a finding when the issue of voluntariness arose again, later in the trial:

THE COURT: Now, I have previously determined in this matter, Mike, that the statements made were voluntary. Do you agree?

MR. TIDWELL (Defendant's attorney): Yes, Your Honor. You ultimately determined that, yes, sir.

This exchange confirms that the trial judge considered the voluntariness argument and rejected it. The Arizona Supreme Court reached the same conclusion: " [T]here is no question that the court did make such a finding [of voluntariness] prior to consideration of the evidence by the jury." State v. Dalglish, 131 Ariz. 133, 639 P.2d 323, 327 (Ariz.1982).

A trial court's finding of fact underlying a ruling on a suppression motion, need not be explicitly stated to satisfy Sec. 2254(d). Where the district court can be "reasonably certain that the state court would have granted relief if it had believed [the defendant's] allegations," the denial of a defendant's suppression motion demonstrates that the factual issue was resolved against the defendant. LaVallee v. Delle Rose, 410 U.S. 690, 695 (1973); see also Knaubert v. Goldsmith, 791 F.2d 722, 727 (9th Cir.), cert. denied, 479 U.S. 867 (1986) ("When a state trial court holds a hearing on a motion to suppress evidence and rules on the motion, a federal district court may assume that the state court found the facts necessary to support the state court's decision, unless there is some indication that the state court applied an incorrect legal standard."). Applying this reasoning to the instant case, it is clear that the trial judge resolved the factual question whether appellant's confession was induced by a promise against appellant. Since the merits of this question were resolved after a full and fair hearing, appellant was not entitled to an evidentiary hearing on this issue.

Dalglish next asserts that he was entitled to an evidentiary hearing in the district court as to whether he asserted his Miranda right to remain silent, thus requiring police to cease questioning immediately. Michigan v. Mosley, 423 U.S. 96 (1975). Dalglish's Miranda claim was adequately heard in the state court proceeding and therefore we reject this argument as well.

Although appellant's counsel did not make the Miranda argument in either his memorandum in support of the motion to suppress or in his oral argument in support of the motion,1  he did pursue a line of questioning on the subject at the suppression hearing. On direct examination at the suppression hearing appellant testified more than once that he responded to Detective Oviedo's initial questioning by saying "I don't want to talk about it." On cross examination, however, the defendant testified, "It could have been either, I don't know anything about it, or I don't want to talk about it. I am sure I kept saying the same statement." Oviedo testified that Dalglish had not refused to speak to him, but rather had denied any knowledge of the homicide.

The issue arose again when Detective Oviedo appeared to change his testimony at trial. The prosecutor argued in chambers that, taken in context, Oviedo's phrase, "he said he didn't have anything to say, he didn't know anything about it" was simply a "poor choice of words," and did not indicate a refusal by appellant to speak to the police. When pressed on the question whether there was a difference between Oviedo's suppression hearing testimony and his trial testimony, appellant's counsel admitted, "Quite frankly, I don't see the difference." The trial judge concluded that, "the defendant has in this case waived those [Miranda ] rights by proceeding to discuss the matter." We believe that, taken together, the suppression hearing testimony and the argument in chambers constituted an adequate hearing of this issue and that an evidentiary hearing in the district court was not warranted.

C. Reconsideration of the Suppression Motion

Appellant also argues that he was entitled to an evidentiary hearing in the district court on his claim that the trial judge's handling of his motion to suppress violated due process. Specifically, appellant claims that the facts concerning the prosecutor's claimed lack of preparedness for the original suppression hearing and the change in Detective Oviedo's probable cause testimony were inadequately developed in the trial court. This argument also fails.

A trial court judge has wide discretion in deciding whether to reconsider a suppression motion. Cf. United States v. Rabb, 752 F.2d 1320, 1322 (9th Cir. 1984), cert. denied, 471 U.S. 1019 (1985) (reviewing district court's decision to reconsider a suppression motion for abuse of discretion). The record here does not show that the trial judge abused this discretion by failing adequately to develop the facts relevant to the decision to reconsider.

The trial judge heard a good deal of argument as to whether the prosecution was prepared for the defense's probable cause argument at the suppression hearing. Appellant's counsel pointed to the fact that the argument was included in his memorandum filed before the suppression hearing. The prosecutor contended that the memorandum was filed just three days before the hearing and that he in fact had not seen it. Regarding the change in Detective Oviedo's testimony, the prosecutor argued in support of the motion for reconsideration that Detective Oviedo had been confused by the questioning at the suppression hearing and now recalled his conversation with Sgt. Heady and was prepared to testify to it. Appellant's counsel argued vigorously that the proposed new testimony would conflict with Detective Oviedo's suppression hearing testimony and with his prior statement during an interview, and that it was therefore unbelievable and should not be considered.

When the suppression hearing was reopened, appellant's counsel had an opportunity to cross-examine Detective Oviedo. He brought out the conflict with the former testimony and inquired of Detective Oviedo what "prompted [his] recollection." The trial judge expressed serious doubts about the change in Oviedo's testimony. Still, after the new evidence had been presented, he apparently credited enough of the officers' testimony to find that probable cause existed.

Section 2254(d) does not empower this court to redetermine the credibility of witnesses whose demeanor has been observed by the state trial judge. Marshall v. Lonberger, 459 U.S. 422, 434 (1983). Because appellant had ample opportunity to be heard on the issues of the prosecutor's preparedness and the officer's change in testimony, we conclude that an evidentiary hearing was not required.

Appellant's claim that the district court erred when it found that his confession was voluntary loses all its force in light of our conclusion that the state court's determinations that no promise was offered and that appellant did not invoke his Miranda rights should be accorded a presumption of correctness under Sec. 2254(d). The "totality of the circumstances" simply does not indicate that appellant's will was overborne by coercive police activity. See Haynes v. Washington, 373 U.S. 503, 513-14 (1963). The fact that the officers were aware of appellant's narcotics habit does not itself establish coercion. Appellant was coherent and did not appear intoxicated. He told the officers that he had not injected dilaudid for a day and a half. There has been no showing that the confession was "given as a result of ... use of drugs or extreme intoxication." United States v. Smith, 638 F.2d 131, 134 (9th Cir. 1981).

Finally, appellant claims that the district court erred in failing to reverse his conviction based on the trial court's refusal to grant appellant a mistrial or continuance after it had changed its ruling on the suppression motion. This claim has no merit.

A trial court has broad discretion in deciding whether to grant a continuance. Morris v. Slappy, 461 U.S. 1 (1982). "To demonstrate reversible error, the defendant must show that the denial resulted in actual prejudice to his defense." United States v. Mitchell, 744 F.2d 701, 704 (9th Cir. 1984). The rule on the denial of mistrials is the same: " [O]n motions for mistrial the trial court has broad discretion, and its rulings will not be reversed unless there was an abuse of discretion that unfairly prejudiced the appellants." United States v. Kahan and Lessin Co., 695 F.2d 1122, 1125 (9th Cir. 1982).

Here, appellant has shown no prejudice. Appellant's trial counsel knew that the suppression motion was being reconsidered before the trial began. Appellant has never explained, either below or on this appeal, how the trial court's denial of a continuance or a mistrial adversely affected his trial strategy. Appellant's defense at trial was self-defense. He has never suggested that the trial court's reconsideration of the suppression issue affected his theory of the case.

Appellant claims that he was prejudiced because the change in the suppression ruling during trial rendered his counsel ineffective. Plainly, appellant cannot demonstrate the combination of deficient performance and prejudice required by Strickland v. Washington, 466 U.S. 668 (1984).

AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. ??

 1

Both parties agree that the trial judge ruled that appellant had waived the Miranda issue by not arguing it at the suppression hearing. Our review of the record indicates that the judge's ruling that a waiver had occurred referred to a different though related issue. This conclusion is supported by the fact that the judge's comments addressed the merits of the Miranda issue. Because we find that the judge determined after an adequate hearing that Dalglish had waived his right to remain silent, we need not decide whether the issue was or should have been deemed waived