Unpublished Disposition, 899 F.2d 19 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 19 (9th Cir. 1990)

Dennis Boyd MILLER, Petitioner-Appellant,v.Robert Glen BORG, Warden, et al., Respondents-Appellees.

No. 88-6675.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 8, 1989.* Decided March 29, 1990.

Before GOODWIN, SCHROEDER and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

Dennis Boyd Miller, a state prisoner, appeals pro se from the decision of the district court, based on a magistrate's report, denying his petition for a writ of habeas corpus on grounds that his conviction for first-degree murder was gained through an unfair trial. He is presently serving a life sentence without possibility of parole.

Miller's first contention is that the district court erred in finding that certain potential jurors were properly excluded from the petit panel because of their scruples over the death penalty.

In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Supreme Court allowed the exclusion of jurors who "would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial...." Id. at 522 n. 21; see also Lockhart v. McCree, 476 U.S. 162, 165 (1986).

However, in Witherspoon the Court specifically held that

a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.

Witherspoon, 391 U.S. at 522; see Buchanan v. Kentucky, 483 U.S. 402 (1987).

Assuming Witherspoon applies to those cases where the sentence is life imprisonment and not death, the issue is whether or not the record shows that those whose exclusion is now challenged indicated that they would automatically vote against the imposition of the death penalty. If they did, then they were properly excluded. The record shows that they were.

Both potential juror Palmer and potential juror Phillips stated that they could not agree with the imposition of a death penalty. Mrs. LaFrance, a third potential juror allegedly improperly excluded, was asked repeatedly if she could consider the death penalty, and repeatedly answered in the negative, even when asked if the defendant were Adolf Hitler. Dr. Meyer stated he could not vote to impose the death penalty under any circumstances, as did Mr. Cordeiro. Juror Vladimir, when asked said "I would have to answer I could not consider it [i.e., the death penalty] in any case." Similar responses were given by Ms. Kaiser, juror Miller, and Ms. Labaron.

In sum, Miller's claim that jurors who indicated their ability to set aside their personal convictions against the death penalty "were improperly excluded" has no merit because it is contrary to the record.

Miller next contends that pretrial publicity denied him a fair trial by an impartial jury in violation of the sixth amendment to the Constitution and that there should have been a change of venue.

We have recognized that in the absence of any actual prejudice, the prejudicial effect of pervasive publicity may be presumed where the record reveals a "barrage of inflammatory publicity immediately prior to trial...." Harris v. Pulley, 852 F.2d 1546, 1553 (9th Cir.) (modified, 885 F.2d 1354 (9th Cir. 1988), petition for cert. filed, No. ____________). Here the magistrate properly found that there was no such barrage, and that the bulk of the pretrial publicity occurred more than a year prior to jury impanelment. Although several of the jurors had heard about the case, the record does not show that any were actually prejudiced.

Miller next contends he was denied a representative jury because of exclusion of jurors who claimed economic hardship. In Duren v. Missouri, 439 U.S. 357, 364 (1979), the Supreme Court held that " [i]n order to establish a prima facie violation of the fair-cross-section requirement [of the sixth amendment], the defendant must show

(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under representation is due to systematic exclusion of the group in the jury-selection process.

Id. at 364, citing Taylor, 419 U.S. 522 (1975)). Miller's claim fails the third and first prongs of this test.

In Lockhard v. McCree, 476 U.S. 162, 174 (1988), the Court indicated that Duran's fair-cross-section requirement applies only to the venire, and not to the petit jury. This conclusion has recently been confirmed. "It does not violate [the fair-cross-section] requirement, we said, to disqualify a group for a reason that is related 'to the ability of members of the group to serve as jurors in a particular case.' The 'representativeness' constitutionally required at the venire stage can be disrupted at the jury-panel stage, to serve a State's 'legitimate interest.' " Holland v. Illinois, 58 U.S.L.W. 4162, 4165 (U.S. Jan. 22, 1990) (emphasis in original; citations omitted).

Excusing jurors for undue financial hardship is such a legitimate interest. See Thiel v. Southern Pacific Company, 328 U.S. 217, 224 (1946) (" [i]t is clear that a federal judge would be justified in excusing a daily wage earner for whom jury service would entail an undue financial hardship"); 28 U.S.C. § 1866(c) (persons summoned for federal juries may be excused on a showing of "undue hardship or extreme inconvenience").

Moreover, jurors excused for undue financial hardship fail to constitute a "distinctive group" in the community under California law. People v. Bell, 49 Cal. 3d 502, 778 P.2d 129, 262 Cal. Rptr. 1 (1989) (in bank); People v. Harris, 47 Cal. 3d 1047, 767 P.2d 619, 255 Cal. Rptr. 352 (1989) (in bank).

There is no merit to appellant's next contention that the trial court erred by taking judicial notice that a gag order had been issued in prior proceedings and that the proceedings had been closed to the public. Appellant contends that such judicial notice acted to his disfavor by undermining his contention that a key witness had obtained information from court records rather than from appellant himself. The district court held that this judicial notice was not so prejudicial as to violate Miller's constitutional rights and we agree. The jury was expressly instructed that it could not conclude that the orders were complied with simply because they were made, and defense counsel did try to impeach the witness by establishing that the information did not come from Miller himself.

Next, appellant argues that the trial court and prosecutor commented improperly on appellant's silence. After the prosecution had rested, defense counsel made a closing statement that: " [u]nder the circumstances that have preceded us in this case, we are not going to present any evidence. And we're going to rely on the state of the evidence as it is at the conclusion of the people's case." The judge then inquired "so, there will be no defense; is that right, Mr. Sanger?" Defense counsel replied, "Well, there's a defense, but there's no defense evidence." Further, the prosecutor suggested the following to the jury: "while it is a lot easier to get up and try to convince the jury that his client is innocent and talk about what we can prove through 46 witnesses and 150 exhibits, and write it all off, than it is to go out and prove it, to prove that our evidence was wrong. I think that the fact that he didn't is a clear indication that he couldn't." Miller claims that these statements violated his privilege against self-incrimination.

The judge's comments appear to be simply an inquiry into whether defense counsel would provide any evidence. But even if the judge's inflection indicated a disbelief that would tend to prejudice defense's case, the judge corrected this by indicating to the jury that the defendant had no obligation to present evidence and that the jury should not "read anything" into the judge's comments about the defense case. The magistrate was correct in recognizing that this statement cured any possible error flowing from the judge's earlier comment. See United States v. Calhoun, 542 F.2d 1094 (9th Cir.), cert. denied, 429 U.S. 1064 (1976).

As for the prosecutor's remarks, the magistrate correctly concluded that they were not manifestly intended as a comment on Miller's failure to take the stand, nor could they necessarily be taken by the jury as such. See United States v. McColeum, 732 F.2d 1419, 1426 (9th Cir.), cert. denied, 469 U.S. 420 (1984); United States v. Pimentel, 654 F.2d 538, 543 (9th Cir. 1981). The record shows that the comments were directed toward the conduct of defense counsel in presenting the case, not at the conduct of defendant.

The appellant challenges the testimony of Duane Mauzey in two respects. Appellant first argues that because potentially exculpatory evidence was destroyed and Mauzey therefore could not testify about it, Miller's due process rights were violated. However, this argument is precluded by Arizona v. Youngblood, 109 S. Ct. 333 (1989), which requires a criminal defendant to show bad faith on the part of the police, in connection with the failure to preserve potentially useful evidence, in order to demonstrate a denial of due process.

Miller's second argument is that the Mauzey testimony was erroneously admitted because the witness lacked expert qualifications and his conclusions were unreliable. Miller was given ample opportunity to cross-examine and to provide expert testimony of his own.

"Incorrect state court evidentiary rulings cannot serve as a basis for habeas relief unless federal constitutional rights are affected." Tinsley v. Borg, No. 87-2238, slip op. at 624 (9th Cir. Jan. 19, 1990) (quoting Lincoln v. Sunn, 807 F.2d 805, 816 (9th Cir. 1987)). Mauzey's testimony did not violate Miller's fourteenth amendment right to due process. See Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.) (expert's testimony on defendant's polygraph results, inadmissible under federal rules, does not violate the Constitution), cert. denied, 428 U.S. 1021 (1985).

AFFIRMED.

 *

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

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

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