Unpublished Disposition, 886 F.2d 1320 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 886 F.2d 1320 (9th Cir. 1989)

Ronald L. LIPSCOMB, a/k/a James R. Lipscomb, Plaintiff-Appellant,v.Dan CAROTHERS, Superintendent of Yukon KuskokwimCorrectional Center, Defendant-Appellee.

No. 88-3788.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 1989.Decided Sept. 29, 1989.

Before GOODWIN, Chief Judge, EUGENE A. WRIGHT, Senior Circuit Judge, and WILLIAM A. NORRIS, Circuit Judge.


Robert Lipscomb appeals the district court's denial of his petition for a writ of habeas corpus challenging his Alaska state robbery conviction. He contends that the admission of certain hearsay statements of John O'Donnell, the robbery victim, to Officer LaSage and Detective Nielsen through the testimony of the two officers violated his sixth amendment right to confrontation. We find that the error, if any, in the admission of the challenged statements was harmless beyond a reasonable doubt.

Confrontation clause violations are subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1985); United States v. Wilmer, 799 F.2d 495, 501 (9th Cir. 1986), cert. denied, 481 U.S. 1004 (1987). " 'Whether a violation of the confrontation clause is harmless depends on a variety of factors including: (1) the importance of the evidence to the prosecution's case; (2) whether the evidence was cumulative; (3) the presence of corroborating evidence; (4) the overall strength of the prosecution's case.' " Wilmer, 799 F.2d at 501 (quoting United States v. Bernard S., 795 F.2d 749, 756 (9th Cir. 1986)).

Here, disregarding the challenged statements, ample evidence was presented to the court that Lipscomb committed the robbery.1  Both LaSage and Nielsen observed ligature marks on O'Donnell's wrists, a brass lamp with its cord severed lying on the floor of O'Donnell's apartment, and clothes strewn about O'Donnell's apartment. Several rolls of coins missing from O'Donnell's apartment were found on Lipscomb's person when he was arrested. O'Donnell's missing jewelry, radio and television were found hidden in Lipscomb's apartment. In addition, a cab driver testified that he picked up a passenger matching Lipscomb's description in front of O'Donnell's apartment at the time of the robbery. Because there was ample evidence that Lipscomb committed the robbery without reference to the challenged statements, any error in admitting the statements was harmless.2 



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. 36-3


Former AS 11.15.240 provided:

A person who, by force or violence, or by putting in fear, steals and takes anything of value from the person of another is guilty of robbery, and is punishable by imprisonment in the penitentiary for not more than 15 years nor less than one year.


Because we hold that the error, if any, in admitting the challenged statements was harmless, we do not reach the issue of whether the statements fall within the excited utterance exception to the hearsay rule. We note, however, that the excited utterance exception is firmly rooted in the jurisprudence of the law of evidence, and, therefore, if the statements qualify as excited utterances, their admission does not offend the confrontation clause. See Puleio v. Vose, 830 F.2d 1197, 1206 (1st Cir. 1987), cert. denied, 108 S. Ct. 1287 (1988); cf. Jeffers v. Ricketts, 832 F.2d 476, 480 (9th Cir. 1987) (holding that a hearsay statement was "sufficiently reliable as an excited utterance" to satisfy the confrontation clause)