Pedro Rodriquez Bustamante v. Harold J. Cardwell (Frank A. Eyman), Warden, Arizona State Prison

Pedro Rodriquez Bustamante appeals from an order denying his petition for a writ of habeas corpus. He challenges the district court ruling that, although his absence from the courtroom at the time a tape recording of instructions was replayed to the jury constituted error, the error was harmless beyond a reasonable doubt. We affirm.

Bustamante’s conviction for first-degree murder was affirmed by the Supreme Court of Arizona in 1968. State v. Bustamante, 103 Ariz. 551 , 447 P.2d 243 (1968). Subsequently, he filed a petition for a writ of habeas corpus in federal district court in Arizona, contending that he had been denied due process of law when the jury was reinstructed at its request during deliberation, in his absence and without his knowledge.

The district court denied his petition, but this court reversed on the ground that the procedure was unconstitutional and remanded for a finding on the issue of prejudicial error. Bustamante v. Eyman, 456 F.2d 269 (9th Cir. 1972).

On remand the district court soon learned that no transcript had been taken at the playing of the tape-recorded instructions. Arguing that our earlier decision required the state to produce a…