# 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/9457883

## 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:** Dissent by Trask
- **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/9457883

## 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

TRASK, Circuit Judge
(dissenting):
I would hold that the replay of a tape of electronically recorded instructions in the absence of the defendant, was not error of constitutional dimension and even if it were, it was harmless error. On the basis of the record before this court I would further declare my belief to be that it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). The case before us is reported in State v. Bustamante, 103 Ariz. 551 , 447 P.2d 243 (1968). As stated by that court, the facts are as follows:
“Viewed in a light most favorable to upholding the verdict the following events occurred. At approximately 12:30 p. m. on February 5, 1966, the defendant arrived at 2913 West Garfield in Tolleson, Arizona, the home of the Ortiz family. At the time of defendant’s arrival, Mr. and Mrs. Ortiz were sitting in the front room, and two of the Ortiz children were in a rear room watching television. Mr. Ortiz invited defendant to sit down, but he proceeded to the rear of the house to watch television.
“After watching television for a short time, defendant moved to the middle room of the house and began conversing with Mrs. Ortiz who was *276 still in the front room with her husband. Defendant asked her to iron a shirt for him. She refused, and told him that he should leave the house. As she spoke she turned her back to defendant and moved across the front room to stand by a window. Defendant walked into the front room and, without further words, pulled a .25 caliber revolver from his coat pocket and shot Mrs. Ortiz twice in the back and once in her right arm. At the first shot, Mr. Ortiz lunged for the defendant, but before he could reach him all three shots had been fired. As Mr. Ortiz struggled to wrest the gun from defendant, a fourth shot was fired into the ceiling. The defendant had purchased the revolver the day before the shooting.” 447 P. 2d at 244 .
The authorities cited by the majority do, indeed, contain strong language upholding the right of a defendant charged with a capital offense to be personally present in the courtroom at all stages of the trial. Here the Supreme Court of the state has held that the absence of the defendant during the replay of the instructions, without a showing of prejudice, was not cause for reversal. There is thus no violation of state law. The question posed by the majority, therefore, is whether a federal right was violated and whether that violation justifies the issuance of a writ. The majority points out that at common law the accused enjoyed a “privilege of presence” and that this rule is embodied in the Constitution. At common law, of course, the recording of the court’s instructions electronically was unknown. The “privilege of presence” therefore referred to the right of the accused to be present at all times when testimony was taken, evidence was introduced, jurors were selected, instructions were given, the verdict was announced and sentence was pronounced. The absence of the defendant at any portion of those original proceedings was a violation of that privilege and that right.
The cases cited by the majority are of that kind and with them one can find nothing to disagree. In Hopt v. Utah, 110 U.S. 574 , 4 S.Ct. 202 , 28 L.Ed. 262 (1884) for example, six jurors challenged for cause by the defendant were examined outside the courtroom and out of the presence of both the court and the defendant. Two were ultimately seated to try the defendant. Other cases cited are of similar tenor.
Here, however, the defendant and his counsel were both present during the entire trial including the instructing of the jury. The defendant and his counsel had full right of confrontation of witnesses, full right to cross-examination and to object to introduction of evidence or presentation of testimony and to make any objection to the proceedings or to offer the testimony of any witnesses or present any evidence.
The minutes of the clerk as recited by the majority indicate what took place at the time of the replay of the tape. There is no suggestion that the minutes are inaccurate or incomplete. The majority intimate that perhaps something untoward occurred; that the jury was not present; that they might not have been able to hear; or that there might have been other dialogue of some sort. The minutes quoted by the majority are clearly to the contrary. Neither appellant’s counsel at the trial nor appellant’s counsel on appeal have hinted at any such occurrence. The opinion of the court here calls atention to Snyder v. Mass., 291 U.S. 97 , 54 S.Ct. 330 , 78 L. Ed. 674 (1934). I, also, emphasize it. That, too, was a state trial for a capital offense. Snyder was sentenced to death, and the highest court of the state affirmed the conviction. During the trial and at the request of the state, the court indicated that it would permit the jury to view the scene of the crime. Counsel for Snyder requested that his client be permitted to view the scene with the jury, invoking the protection of the federal Constitution. The motion was denied. Mr. Justice Cardozo for the Supreme Court answered the contention *277 that the absence of the defendant at the view was a denial of due process under the Fourteenth Amendment. He pointed out that in earlier cases the absence of the defendant might well be said to have borne a relation, reasonably, substantial to the defendant’s opportunity to defend. He continued:
"Nowhere in the decisions of this court is there a dictum, and still less a ruling, that the Fourteenth Amendment assures the privilege of presence when presence would be useless, or the benefit but a shadow. What has been said, if not decided, is distinctly to the contrary. Howard v. Kentucky, 200 U.S. 164, 175 [ 26 S.Ct. 189 , 50 L.Ed. 421 ]; Valdez v. United States, 244 U.S. 432, 445 [ 37 S.Ct. 725 , 61 L.Ed. 1242 ]. Cf. Frank v. Mangum, supra, and particularly the dissenting opinion at p. 346 of 237 U.S. [309] [ 35 S.Ct. 582 , 59 L.Ed. 969 ].” 291 U.S. at 106 , 54 S.Ct. at 332-333 .
Again he pointed out:
“At the outset, we consider a bare inspection and nothing more, a view where nothing is said by any one to direct the attention of the jury to one feature or another. The Fourteenth Amendment does not assure to a defendant the privilege to be present at such a time. There is nothing he could do if he were there, and almost nothing he could gain. The only shred of advantage would be to make certain that the jury had been brought to the right place and had viewed the right scene. If he felt any doubt about this, he could examine the bailiffs at the trial and learn what they had looked at. The risk that they would lie is no greater than the risk that attaches to testimony about anything. ‘Constitutional law, like other mortal contrivances, has to take some chances.’ Blinn v. Nelson, 222 U.S. 1, 7 [ 32 S.Ct. 1, 7 , 56 L.Ed. 65 ], Here the chance is so remote that it dwindles to the vanishing point.” 291 U.S. at 108 , 54 S.Ct. at 333 .
The Fourteenth Amendment has not said in so many words that he must be present every second or minute or even every hour of the trial. If words so inflexible are to be taken as implied, it is only because they are put there by a court, and not because they are there already, in advance of the decision. Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. It is fairness with reference to particular conditions or particular results.” 291 U.S. at 116 , 54 S.Ct. at 336 . a
It would appear that Snyder is a stronger case for the accused than the present one. There, the jury was presented with the actual scene for the first time and it was during the course of the trial. The court in his instructions described the view as part of the evidence. The majority here distinguishes Snyder upon the basis that there was a “complete record” and the fact that a view was not part of a trial “in the sense in which a trial was understood at common law.” As to the complete record, there is nothing to indicate the record here is not complete. As to the historic concept of a view as not being a part of the trial, I take issue with the majority’s basis of distinction. The opinion of the Supreme Court emphasizes time and again that the problem is fundamentally one of constitutional due process in the sense of a full and fair trial. Upon that measure we look primarily to the question of whether the defendant has been denied his ability to defend. There is nothing which the defendant here could do by being present at the replaying of the court’s instructions to aid in his defense.
Mr. Justice Cardozo closes his opinion with the admonition that the Supreme Court should not supersede the particular state’s forms with which its own sense of fairness and justice expresses itself in rules of law. His warning has been oft quoted and was repeated by Mr. Justice Stewart as recently as in Dutton *278 v. Evans, 400 U.S. 74, 89 , 91 S.Ct. 210, 220 , 27 L.Ed.2d 213 (1970).
“There is danger that the criminal law will be brought into contempt— that discredit will even touch the great immunities assured by the Fourteenth Amendment — if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law, and set the guilty free.” Snyder v. Mass., 291 U.S. at 122 , 54 S.Ct. at 338 .
I would affirm the district court’s denial of the Writ of Habeas Corpus.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9457883. Public record. Not legal advice.