# Pedro Rodriquez Bustamante v. Frank A. Eyman, Superintendent, Arizona State Prison

> Court of Appeals for the Ninth Circuit · February 7, 1972 · 456 F.2d 269

URL: https://www.frixlaw.com/law-library/cases/9457882

## Case

- **Full name:** Pedro Rodriquez BUSTAMANTE, Petitioner-Appellant, v. Frank A. EYMAN, Superintendent, Arizona State Prison, Respondent-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** February 7, 1972
- **Citations:** 456 F.2d 269; 1972 U.S. App. LEXIS 11439
- **Precedential status:** Published
- **Opinion:** Concurrence by Duniway
- **Judges:** Duniway, Trask, Ferguson
- **Cited by:** 86 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9457882

## How later opinions describe it (automated extraction)

- stating that defendant "did not, indeed could not, waive his right to be present in the courtroom at trial"

## Opinion text

DUNIWAY, Circuit Judge
(concurring) :
I concur. The holding in this case is a narrow one. As I understand Judge Ferguson’s opinion, it does two things. The first is to hold that, as a matter of federal constitutional law, a defendant in a state trial for a capital offense has a right to be present at every stage of the trial. I do not understand Judge Trask to dispute this proposition. Second, Judge Ferguson holds that without a record of what happened when the tape recording of the jury instructions was played back to the jury in the absence of the defendant, it is not possible to say that the error was harmless beyond a reasonable doubt. If the District Judge, on remand, gets a record of what happened at the proceeding in question, it will still be open to him, on the basis of that record, to decide whether the error was harmless beyond a reasonable doubt. We merely hold that the court could not make that determination without a complete record.
I find it difficult to accept Judge Trask’s statement that there is nothing to indicate that the record here is not complete. All that the court had before it was the Clerk’s minutes, which do not purport to be a transcript. The District Court had asked for and the state had refused to provide a reporter’s transcript of what was said and done. I see nothing startling in requiring that the record be produced for evaluation on the harmless error question by the District Judge.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9457882. Public record. Not legal advice.