argued submitted seattle washington: May 3, 1993.
Appeal from the United States District Court for the District of Montana. D.C. No. CV-91-23-PGH. Paul G. Hatfield, District Judge, Presiding
Before: Wright, Alarcon and Beezer, Circuit Judges.
Philip K. Sadowski, a Montana state prisoner, appeals from the denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. He contends that he is entitled to a new trial because he was deprived of his right to due process as a result of prosecutorial misconduct, the admission of evidence of a prior bad act, and the failure of the investigating officers to preserve evidence that may have supported his theory of self defense. We review de novo the denial of a petition for habeas corpus. Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir. 1988). We affirm because we conclude that the record does not demonstrate that Sadowski's conviction was obtained in violation of his right to due process.
PERTINENT FACTS AND PROCEDURAL HISTORY
At the state trial on the issue of guilt, prosecution witness Frank McKinnis testified that he met Sadowski and his cousin, Sid Warburton, at a tavern located in Gallatin County, Montana. McKinnis was with a woman named Lynn Bell. McKinnis and Sadowski discussed woodworking. Sadowski told McKinnis he owned the Furniture Doctor, a furniture restoration and repair business. It was located in a shop next to Sadowski's home. While at the bar, McKinnis was introduced to Robert Hare. Bell stated Hare was a friend. When the bar closed, Sadowski invited McKinnis and Bell to his shop to continue drinking and to show off his woodworking tools.
As McKinnis and Bell were leaving the bar, they met Hare. Hare was invited to spend the night at McKinnis' residence. Hare, McKinnis, and Bell followed Sadowski to his shop. When they arrived, Sadowski told Hare, McKinnis, Bell, and Warburton to wait outside until he locked up his dogs. Bell introduced Hare to Sadowski as a friend. Sadowski invited him into his shop with the others.
The group drank alcohol and everyone became intoxicated. At approximately 3:30 a.m., Sadowski escorted McKinnis outside to show him his wood supply. When Sadowski and McKinnis reentered, Warburton was standing next to Hare and Bell near the doorway to the tool room. Warburton said, "He had hurt me. He'd hurt me." Sadowski told Warburton to "knock it off."
McKinnis testified that Sadowski permitted him to use his tools and equipment. While he worked on the bandsaw, McKinnis had his back to the other persons in the shop. Prior to finishing his use of the bandsaw, McKinnis asked Bell to get him a beer.
When McKinnis finished working on the bandsaw, he turned around and observed Hare standing near the entrance to the shop, about 10 to 12 feet away from Sadowski. McKinnis testified the two men were speaking in low tones. Hare was gesturing with his hands in front of him as he spoke. McKinnis did not see anything in Hare's hands. No one else was in the shop. As McKinnis walked towards them, Sadowski said: "I'm tired of all this bullshit." Sadowski then turned to the counter, turned around, pointed his revolver at Hare, and fired it. Hare then stated: "I've been shot." He grasped his chest and fell to the floor. Sadowski pointed the revolver at McKinnis. McKinnis told him that "if he was going to shoot me, do a good job of it or call the police."
Sadowski lowered the revolver. McKinnis placed Hare's body in the proper position for the administration of CPR. When McKinnis became aware that Hare was dead, he closed Hare's eyes. Thereafter, McKinnis ran outside to direct the police to Hare's body.
Sadowski's version of these events surrounding the homicide differs significantly. The jury credited McKinnis' testimony.
Sadowski testified that when Warburton first yelled "they are hurting me," he thought it was odd, but did nothing about it. Later, according to Sadowski's version of the facts, McKinnis asked him to get some beer from inside the house. While Sadowski was in his living quarters, he heard Warburton cry out that he was being hurt. Sadowski testified that he became concerned that these strangers were about to commit a robbery or some other untoward act. He was aware that Warburton was extremely intoxicated and was wearing quite a bit of jewelry. To protect himself from assault, Sadowski placed a revolver in his belt in the back of his pants and returned to the shop. When Sadowski asked Warburton what was going on, he answered incoherently. Bell replied: "Oh, there's not really any problem. Everything's okay. There's no problem." Sadowski saw Warburton and Bell kissing. They walked out of the shop toward his apartment.
Sadowski testified that McKinnis had his back to Bell and Warburton, and did not observe their conduct as he worked at the bandsaw. Sadowski asked Hare, "What's going on out there?"
According to Sadowski, Hare replied: "Well, you know what's going on out there. She's sort of jerking him around and this is how we get our power." Sadowski asked Hare to explain what he meant. Hare replied: "Well, that's just what we do." Sadowski testified that he became frightened because he thought the visitors were planning a robbery or were part of a cult. Sadowski stated that he stepped back a couple of steps and pulled out the revolver and placed it in front of him without pointing it and stated: "Look, I don't know what the hell's going on at this point but I want you to-- " At this point, Hare advanced towards him yelling, "oh, you can't stop me with that."
Sadowski testified he continued to retreat and again asked Hare not to come any closer. Hare continued advancing towards him yelling, "you can't stop me." Hare then crouched, brought his right hand up, placed his left hand in front of him, and appeared ready to launch himself at Sadowski. When his back touched the wall, Sadowski brought the gun up, aimed at Hare's chest, and shot him.
Sadowski testified that Hare had been standing next to a table that contained many tools that could serve as a weapon just prior to the homicide.
Sadowski's First Pre-Arrest Statement
Sadowski testified that he laid the gun on the chair and called the Gallatin County Sheriff's Office. His telephone call was recorded. Sadowski told the dispatcher "Um, a person in my house has been shot, I shot him." Sadowski also stated: "It happened while he was getting right in my face." Sadowski did not tell the dispatcher that he believed that Hare was armed. The dispatcher asked Sadowski: "Was he robbing you or what?" Sadowski replied: "Ah, no he, ah I can't explain the situation." The dispatcher then inquired: "Was it a fight?" Sadowski answered: "It's it's complicated." Later Sadowski stated to the dispatcher: "The man was being totally aggressive, he was aggressive as I said earlier . . . . You do what you have to do to protect yourselves."
Sadowski's Second Pre-Arrest Statement
When the sheriff's deputies arrived at Sadowski's shop in response to his call, Sadowski told Sheriff Charles Cutting and Deputy Sheriff William Rash that he shot Hare and had called the Sheriff's Department. Deputy Rash then arrested Sadowski and advised him of his Miranda rights. He was not questioned in the shop by any of the officers. Instead, he was placed in Montana' Highway patrolman Bryan Adams' custody for transportation to the Law and Justice Center in Bozeman, Montana, at approximately 4:27 a.m. The record is silent as to how many minutes Sadowski remained in the shop after he was advised of his constitutional rights. During the time period between Deputy Rash's arrival at the shop and the transportation of Sadowski to the Law and Justice Center, the only statement heard by Deputy Rash was, "I shot him."
Sadowski's First Post-Arrest Statement
Sadowski did not make any statement to Patrolman Adams as they drove to the Law and Justice Center. After they arrived, Sadowski spoke to Patrolman Adams about the homicide although Patrolman Adams had not questioned him. Adams testified that Sadowski stated that Hare "came at him with a knife and that he had no choice but to shoot . . . shoot to kill."
Sadowski's Second Post-Arrest Statement
Cutting advised Sadowski again of his constitutional rights at 5:05 a.m. Sadowski told Cutting that he wanted to talk and Cutting recorded these statements. Sadowski told Sheriff Cutting that after he drew his revolver, Hare said "no you can't stop me with that." Hare then "reached around and reached out with his right hand and had something in his right hand that was shiny." Sadowski stated that he thought Hare had a knife.
ALLEGED IMPEACHMENT BASED ON POST-ARREST SILENCE
Sadowski first argues that the prosecutor questioned Sadowski and other witnesses about his silence after he was admonished concerning his Miranda rights. Sadowski also contends that the prosecutor argued to the jury that Sadowski's silence after he was advised of his constitutional rights constituted evidence of guilt. He contends that the prosecutor's tactics violated his right to due process as explicated in Doyle v. Ohio, 426 U.S. 610 (1976). We discuss these contentions and the pertinent portions of the record under separate headings.
A. The Prosecutor's Questions were Limited to Sadowski's Pre-Arrest Statements
In Doyle v. Ohio, the Supreme Court instructed that "it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." Id. at 618. The Court held that "the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." Id. at 619.
In Doyle, the petitioners were arrested for selling marijuana. They were advised of their constitutional rights. Each petitioner remained silent. At trial each petitioner testified that a police informer had framed him. Id. at 611-13. During cross-examination, over objection, the prosecutor inquired of each petitioner whether he had told the police he had been framed. Id. at 613-14. Here, in contrast, the prosecutor impeached Sadowski with his pre-arrest statement.
The following colloquy took place during the prosecutor's cross-examination of Sadowski:
Q. Now, there at the building, at the shop when they were there, you made the statement ...