Unpublished Disposition, 931 F.2d 897 (9th Cir. 1991)

MEMORANDUM^** 

Ricky D. Manning, an Arizona state prisoner, appeals pro se the denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction for armed robbery. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and we affirm.

* Manning contends that the admission of certain evidence at his trial denied him due process.

Violation of a state evidence rule does not constitute grounds for habeas corpus relief absent a due process violation. See Engel v. Isaac, 456 U.S. 107, 119 (1982); Middletown v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). A federal court cannot disturb on due process grounds a trial court's discretionary decision to admit evidence unless the trial court committed an error which was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. Jammal v. Van De Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir. 1986); Batchelor v. Cupp, 693 F.2d 859, 865 (9th Cir. 1982), cert. denied, 463 U.S. 1212 (1983).

First, Manning challenges the admission of testimony by police officers that he was under surveillance for five hours before the robbery. He asserts that it was excessive to have five police officers testify how twelve police officers trailed him for five hours and that the overly detailed testimony gave rise to an impermissible inference that he had committed prior bad acts and was a dangerous person. This evidence, however, was not so detailed or cumulative that Manning was denied a fair trial. See Colley, 784 F.2d at 990.

Second, Manning argues that police officer Heady should not have been allowed to refer during his testimony to a missing photocopy of photographs of Manning, who is black, and the two other suspects in the robbery, Angel Aranda and John Armenta, who are Mexican-American. This photocopy, which was used by Heady during surveillance, was lost or destroyed after the surveillance ended. At trial, Manning moved to prevent any mention of the photocopy based on the best evidence rule and failure to produce the document at discovery. The motion was denied.

Manning asserts that the photocopy was crucial evidence. Nevertheless, under the circumstances, Manning has not shown an error so prejudicial that he was denied due process. See id.

II

Manning asserts he was denied due process when the state presented his prior testimony from a previous trial that had resulted in a hung jury. Manning testified at the first trial, but did not testify at his second trial.

Here, Manning elected not to testify at his second trial, and he argues that the prosecution's introduction of evidence from his first trial was improper and undermined his right to choose whether or not to testify. Even if Manning were correct, which we do not decide, any error would be harmless. See Arizona v. Fulminante, 111 S. Ct. 1246, 1262-1264 (1991). Only a small portion of Manning's prior testimony was introduced, and it was entirely consistent with the defense's theory. Accordingly, Manning is not entitled to relief on this claim.

III

Manning also challenges the voluntariness of statements made by him to police after he was arrested and given his Miranda warnings.

Before a criminal defendant's statements can be used against him, the government must prove its voluntariness by a preponderance of the evidence. United States v. Leon Guerrero, 847 F.2d 1363, 1365 (9th Cir. 1988) (citing Lego v. Twomey, 404 U.S. 477, 489 (1972)). An inculpatory statement is voluntary only when it is the product of a rational intellect and a free will. Id. (citing Blackburn v. Alabama, 361 U.S. 199, 208 (1960)). The test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne. Id. (citing Haynes v. Washington, 373 U.S. 503, 513-14 (1963)). Improper inducement includes direct or implied promises which are sufficiently compelling to overbear the suspect's will in light of all attendant circumstances. Id. (citations omitted).

Given the circumstances surrounding Manning's statements, we conclude that his statements were voluntary.

IV

Manning also challenges the jury instructions on armed robbery and flight given at his trial.

Habeas relief is warranted for defective jury instructions given in state criminal proceedings only if the "ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quotation omitted).

Manning first challenges the jury instruction on armed robbery, which was as follows:

The defendant commits armed robbery if in the course of taking any property of another from his person or immediate presence and against his will the defendant or an accomplice threatens or uses force against any person with intent to either coerce surrender of the property or to prevent resistance to the defendant or an accomplice's taking or retaining the property.

Manning does not assert that the instruction was incorrect but only that the recommended Arizona jury instruction was more clearly written. Accordingly, he states no due process violation.

Manning also objected to the giving of a jury instruction on flight. Under Arizona law, a flight instruction is proper where the manner of leaving the scene of the crime reveals a consciousness of guilt such as open flight upon pursuit. State v. Clark, 126 Ariz. 428, 434, 616 P.2d 888, 894, cert. denied, 449 U.S. 1067 (1980). Here, Manning left the scene of the crime at 70 miles per hour, ran several stop signs and red lights, stopped to let his passenger get out and run away on foot, and stopped only when the police pulled in front of his car and blocked him. The evidence supported an instruction on flight, and any error was not a due process violation. See Henderson, 431 U.S. at 154.

V

Manning also asserts he was denied a fair trial because a juror may have seen him in handcuffs on the elevator.

"When the jury's view of a defendant or witness in shackles is brief, ... the defendant must make an affirmative showing of prejudice" to warrant habeas corpus relief. Wilson v. McCarthy, 770 F.2d 1482, 1485-86 (9th Cir. 1985).

Here, the elevator used to transport prisoners was not working during one day of the trial, and Manning's attorney advised the trial court that a juror may have been with him while the deputy was transporting him in handcuffs on the regular elevator. The trial court asked the attorney what he wanted to do about the alleged incident, and he responded that he was just bringing it to the court's attention. After finding no prejudice, the trial court proceeded with the trial.

In his habeas petition, Manning asserts that the trial court should have questioned the jurors as to whether any of them had ridden in the elevator with him, and if so, asked them if they felt their ability to be impartial was impaired and instructed them that all criminal defendants brought to the courthouse are handcuffed and supervised by deputies. Nevertheless, Manning's counsel did not move for a mistrial nor did he ask to question any jurors when he brought the possible viewing to the trial court's attention. Moreover, counsel may have made a reasoned, tactical decision not to explore the issue with the entire jury based the possibility that one juror might have seen Manning being transported in handcuffs. See Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1984). Given these circumstances, we hold that Manning has not demonstrated prejudice sufficient to establish a due process violation. See Wilson, 770 F.2d at 1485-86.

VI

Finally, Manning asserts that the trial court erred by not allowing Manning's counsel in his closing argument to quote from a magazine article about coincidences. Nevertheless, Manning's counsel still characterized the state's evidence as coincidence. The trial court's discretionary decision as to the materials the counsel could use during argument was not so prejudicial that it rises to the level of a due process violation.

AFFIRMED.