Appeal from the United States District Court for the District of Arizona. D.C. No. CV-85-530 PHX RCB. Robert C. Broomfield, District Judge, Presiding. Orignial Opinion Reported at,
Before: Herbert Y. C. Choy, Alfred T. Goodwin, and William A. Norris, Circuit Judges.
Luis Morine Mata appeals the denial of his petition for a writ of habeas corpus following his conviction and exhaustion of state remedies in this capital murder case from Arizona. See State v. Mata, 125 Ariz. 233, 609 P.2d 48, cert. denied, 449 U.S. 938, 66 L. Ed. 2d 161, 101 S. Ct. 338 (1980).
The principal question before us is whether a new Supreme Court decision announced after the exhaustion of state remedies and after the Conclusion of proceedings before the district court creates a right to federal constitutional relief.
During the trial, Mata's brother, Alonzo, was Luis' codefendant. Both exercised their constitutional right not to testify. Alonzo and Luis had both confessed to raping and murdering the decedent and dumping her body in the desert outside Tucson. Alonzo's version of the confession placed the fatal knife in the hands of Luis, who then admitted in his confession that he had indeed cut the throat of the victim. Because Alonzo did not choose to testify, the state offered both Luis' and Alonzo's confessions into evidence against both defendants. Luis likewise declined to testify and both were convicted and sentenced to death.
Following a remand for resentencing under State v. Walton, 120 Ariz. 441, 586 P.2d 1253 (1978), Alonzo received a life sentence and Luis was again sentenced to death. Alonzo is not before us in this appeal. While Luis apparently never raised in earlier proceedings the question of the admissibility against him of his brother's confession, Luis now contends that under the rule of Cruz v. New York, 481 U.S. 186, 193-94, 95 L. Ed. 2d 162, 107 S. Ct. 1714 (1987), he is entitled to a new trial.
The state, conceding that Cruz now bars the use of a nontestifying codefendant's confession incriminating the defendant in future trials, argues that good reasons counsel against employing Cruz to reopen old cases, particularly those in which the codefendant's incriminating confession added little or nothing to the state's overwhelming evidence of the guilt of the defendant.
The state argues that Alonzo's confession told the jury nothing it did not already know; that the evidence was harmless beyond a reasonable doubt; that the evidence was lawfully received when the case was tried (citing Parker v. Randolph, 442 U.S. 62, 60 L. Ed. 2d 713, 99 S. Ct. 2132 (1979); and that new constitutional rules of criminal procedure generally should not be applied retroactively to cases on collateral review. Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989).
In this case we need not discuss the application of Teague because any error in using the codefendant's confession was harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726 (1969) (holding that the admission of statements of two nontestifying codefendants against Harrington was harmless error). In United States v. Hasting, 461 U.S. 499, 76 L. Ed. 2d 96, 103 S. Ct. 1974 (1983), the Supreme Court described the harmless error test in the following fashion:
Since Chapman, [386 U.S. 18 (1967)] the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations.
The question a reviewing court must ask is this; absent [the allegedly improper evidence] is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?
Id. at 509-11. There is no doubt that petitioner would have been convicted by his own confession plus the abundant corroboration of George ...