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

Appellant was convicted of first degree murder by a jury in the Superior Court of Maricopa County, Arizona, and sentenced to life imprisonment. His conviction was affirmed on appeal to the Arizona Supreme Court. State v. Busta-mante, 103 Ariz. 551 , 447 P.2d 243 (1968). Thereafter, he sought a writ of habeas corpus in the United States District Court for the District of Arizona, pursuant to 28 U.S.C. § 2254 . His petition was denied, and this appeal followed.

Upon the filing of the petition, the district court found that “[o]n its face, the petition raises several issues as to the constitutionality of petitioner’s confinement”. It directed the appellee to file .the record of the state court proceedings, including the reporter’s transcript of the preliminary hearing, the reporter’s transcript of the trial, minute entries of record and photostated instruments of record. The appellee disregarded the district court’s order, stating that “it is unnecessary to file such a voluminous addendum”. The cause was then heard by the district court, based solely on the allegations of the petition and legal argument.

The petition sets forth nine separate contentions as constituting grounds for…

(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…

(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:

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…

456 F.2d 269 Pedro Rodriquez BUSTAMANTE, Petitioner-Appellant, v. Frank A. EYMAN, Superintendent, Arizona State Prison, Respondent-Appellee. No. 26506. United States Court of Appeals, Ninth Circuit. Feb. 7, 1972. 1 Robert J. Corcoran (argued), LeRoy L. Miller, of Dushoff, Sacks & Corcoran, Phoenix, Ariz., for petitioner-appellant. 2 Roderic A. Dietz (argued), Gary K. Nelson, Ariz. Atty. Gen., Phoenix, Ariz., for respondent-appellee. 3 Before DUNIWAY and TRASK, Circuit Judges, and FERGUSON, * District Judge. FERGUSON, District Judge: 4 Appellant was convicted of first degree murder by a jury in the Superior Court of Maricopa County, Arizona, and sentenced to life imprisonment. His conviction was affirmed on appeal to the Arizona Supreme Court. State v. Bustamante, 103 Ariz. 551 , 447 P.2d 243 (1968). Thereafter, he sought a writ of habeas corpus in the United States District Court for the District of Arizona, pursuant to 28 U.S.C. Sec. 2254 . His petition was denied, and this appeal followed. 5 Upon the filing of the petition, the district court found that "[o]n its face, the petition raises several issues as to the constitutionality of petitioner's confinement". It directed…