975 F.

2d 1473

Jeffrey L. SCOTT, Petitioner-Appellant,

v.
Raymond ROBERTS, and Attorney General of Kansas,
Respondents-Appellees.
No. 91-3356.

United States Court of Appeals,

Tenth Circuit.
Sept. 22, 1992.

Benjamin C. Wood, Overland Park, Kan., for petitioner-appellant.

Jalynn Copp, Asst. Atty. Gen., Office of Atty. Gen. for State of Kan.,
Topeka, Kan., for respondents-appellees.
Before LOGAN, TACHA, and EBEL, Circuit Judges.
EBEL, Circuit Judge.

In this appeal of a denial of habeas corpus relief, we confront the issue of

whether the refusal to grant a continuance at trial, which was requested in order
to attempt to compel the testimony of a defense witness, amounted to a
violation of the appellant's constitutional rights. We hold that, under the facts of
this case, such a denial did not deprive the appellant of his constitutional rights
under the Sixth and Fourteenth Amendments. Therefore, we affirm the district
court's order denying the writ.

I. Facts
2

The appellant was convicted in state court of taking indecent liberties with a
child in violation of Kan.Stat.Ann. 21-3503 (1982). The original charge
alleged sexual intercourse as the basis for the indictment, and it is unclear in the
record before us whether a proper amendment was made to include lewd
fondling or touching. After exhausting his state remedies, the appellant sought
and was denied habeas corpus relief in the United States District Court for the
District of Kansas. Appeal to this court followed. Jurisdiction is properly based

upon 28 U.S.C. 2253.

3

The alleged incident involved S.T., a twelve-year-old girl who was living with
her mother, Donna Hahn, and her mother's boyfriend, Jeffrey Lynn Scott, the
appellant. According to the testimony of S.T., she was sexually assaulted by the
appellant one evening while lying on the couch in their apartment. S.T. alleged
that she notified her mother the next day but that her mother chose to disregard
her complaint.

A police officer who questioned the appellant orally testified that the appellant
made several incriminating statements to her. However, there was no taped
statement or signed confession, and the appellant flatly denied making these
statements. The appellant testified that any confusion was due to the nature of
the hypothetical questions posed to him. He further noted that his answers had
indicated that he could not recall, could not remember, or did not engage in the
activities mentioned.

At trial, in Kansas state court, the appellant intended to present the testimony of
Donna Hahn, the alleged victim's mother, who was then residing in Minnesota.
Proceeding under the Uniform Act to Secure Attendance of Witnesses from
without State, Kan.Stat.Ann. 22-4201 et seq., the defense "exercised full
diligence" in attempting to secure Hahn's testimony. Memorandum and Order at
4, in Appellant's Appendix at Tab 7. On the day of trial, Hahn was not present
to testify.

On the morning of trial but before the jury was empaneled, the appellant made
his first request for a two-week continuance so that he could have Hahn served
with a warrant issued out of Minnesota compelling her attendance. He renewed
his request for a continuance in the afternoon of the first day and again during
the presentation of the defense case. The appellant initially made the following
proffer concerning Hahn's testimony:

7
This
witness is material to this case and our defense. Basically if we don't have this
witness we don't have a case. She is the mother of the alleged victim in this case.
She was at the residence at the time that the state alleges that it occurred. She would
be able to testify as to conversations she has and has not had with the victim in this
case regarding this matter. She would be able to testify we feel that she received a
letter from the victim in this particular case stating in a manner of words that the
next door neighbor, a Christine Schorn, had put her up to making this police report in
Minnesota regarding the defendant in this case.
8

Transcript at 5-6. During the defendant's case, the appellant made an additional

Transcript at 5-6. During the defendant's case, the appellant made an additional
proffer:

9 Donna Hahn had been present, we expect that her testimony would be that she is
If
the mother of [the victim]; that she was living with [the victim] during the months
through September of 1984 to March of 1984 [sic]; that she lived continuously with
[the victim] through that time. That during that time that she moved in--or that
Jeffrey Scott moved in and resided with them; that at no time during that time period
did [the victim] ever mention to her that there were any sexual improprieties. We
expect that her testimony would be that in her experience with [the victim], that there
have been instances where she had been manipulative, that she has lied in regard to
activities of other people in order to manipulate people; that she cannot be trusted in
this respect. We expect that her testimony would be that prior to [the victim]
contacting the police in Willmar, Minnesota on June first, 1985, that she had no
indication whatsoever that there was ever any sexual improprieties going on between
Jeffrey Scott and [the victim].
10

Transcript at 5-6.

11

The district court was inclined to agree that Hahn's testimony was material and
vital to the defense. Although the court issued a certificate authorizing a
warrant for Hahn's arrest, it denied the appellant's request for a continuance. It
is not clear whether the whereabouts of Hahn were known, but counsel for the
defendant had earlier sent her money for travel to Kansas to attend trial and
Hahn apparently spent the money for other purposes. Defense counsel had also
attempted to serve Hahn with a warrant to compel her attendance but was
unable to get such a warrant issued out of Minnesota in time because the local
Minnesota judges were away at a conference.

II. Legal Analysis

12

This appeal raises the following issue: whether the denial of the continuance at
trial, which contributed to the inability of the defense to obtain the testimony of
a vital and material witness, amounts to a denial of the appellant's constitutional
rights under the Sixth and Fourteenth Amendments. Generally, the power to
grant or deny a continuance is within the discretion of the trial judge and the
decision will only be reviewed for abuse of that discretion. Avery v. Alabama,
308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940). A district court
decision will only be reversed for an abuse of discretion, where the denial is
found to be arbitrary or unreasonable and to have materially prejudiced the
appellant. United States v. West, 828 F.2d 1468, 1470 (10th Cir.1987).
In order to obtain habeas corpus relief, however, the petitioner must also show

13

13

that the abuse of discretion infringed on his constitutional rights. The denial of
a continuance must not only have been an abuse of discretion; it must have been
so arbitrary and fundamentally unfair that it violated the appellant's
constitutional right to due process. Case v. Mondragon, 887 F.2d 1388, 1396
(10th Cir.1989), cert. denied, 494 U.S. 1035, 110 S.Ct. 1490, 108 L.Ed.2d 626
(1990); Hicks v. Wainwright, 633 F.2d 1146, 1148 (5th Cir.1981). That is, the
error must have been so grave that it rendered the trial fundamentally unfair.
Kirkpatrick v. Blackburn, 777 F.2d 272, 278 (5th Cir.1985), cert. denied, 476
U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986).

14

To grant habeas corpus relief, we must first conclude that the denial of the
continuance was arbitrary and unreasonable and second that this violation
rendered the trial fundamentally unfair. These legal conclusions involve mixed
questions of law and fact and are reviewed de novo. See Case, 887 F.2d at 1393
(citing Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d
480 (1982); Chaney v. Brown, 730 F.2d 1334, 1346 (10th Cir.1984));
Dickerson v. Alabama, 667 F.2d 1364, 1368-69 (11th Cir.), cert. denied, 459
U.S. 878, 103 S.Ct. 173, 74 L.Ed.2d 142 (1982).

A. Was Denial of the Continuance Arbitrary and Unreasonable?

15
16

Although there are no mechanical tests to determine when the denial of a

continuance is arbitrary or unreasonable, this court has set forth a number of
factors to be considered. They include:

17 diligence of the party requesting the continuance; the likelihood that the
the
continuance, if granted, would accomplish the purpose underlying the party's
expressed need for the continuance; the inconvenience to the opposing party, its
witnesses, and the court resulting from the continuance; the need asserted for the
continuance and the harm that appellant might suffer as a result of the district court's
denial of the continuance.
18

West, 828 F.2d at 1470 (emphasis added). The evaluation must focus on the
need for a continuance and the prejudice resulting from its denial. Case, 887
F.2d at 1397. We now turn to each of these factors.
1. Diligence

19

As the state concedes, the diligence of the appellant in attempting to secure

Hahn's testimony is not in question. Appellees' Brief at 11. We have found no
basis in the trial record to dispute this conclusion.

2. Usefulness of the Continuance

20

The district court expressed substantial doubt that a continuance of even two
weeks would be sufficient to compel Hahn's testimony. Furthermore, it was not
clear that Hahn's testimony could be secured at all. We find ample support for
these concerns on the record. The record does not establish that Hahn's
whereabouts were definitively known, and there were conflicting reports
regarding her activities. Furthermore, the appellant's counsel informed the court
that Hahn may have misappropriated the funds sent to her for the purpose of
travelling.

21

These concerns must be balanced against the possibility that the court could
have forced Hahn to testify through compulsory process. On balance, the
efficacy of the continuance in securing Hahn's appearance is in doubt and this
factor favors neither the appellant nor the state.
3. Inconvenience

22

We agree with the trial court's conclusion that a continuance would have
inconvenienced both the court and the prosecution. The first request for a
continuance was made on the morning of the day of trial. Although the jury had
not yet been empaneled, the venire panel had no doubt been called. Further,
several witnesses for the prosecution had flown in from out of town. Assuming
that Hahn could be found, it was unclear how long a continuance would be
necessary to compel her testimony. Overall, a continuance at this late date on
the morning of trial would have inconvenienced both the court and the
prosecution. The renewed motions for a continuance made during trial would
have resulted in even greater inconveniences because by then the jury had been
empaneled.
4. Need and Prejudice

23

In determining whether the denial of a continuance is arbitrary or unreasonable,

the most important considerations are the need for the continuance and the
prejudice resulting from its denial. Case, 887 F.2d at 1397. In the instant case,
these factors do not rise to a level that renders the denial arbitrary or
unreasonable.

24

Hahn, the mother of the victim, was neither going to testify directly about the
incidents underlying the charge, nor was she an alibi witness. Rather, as the
proffers show, she was a potential impeachment witness. Admittedly, Hahn

was to impeach the testimony of the victim, which was the crucial component
of the prosecution's case. However, the impeachment testimony that Hahn was
expected to offer was only on collateral matters that would not directly have
addressed whether the alleged events occurred. Furthermore, much of the
evidence that Hahn's testimony was to elucidate had already been entered into
the record. This can be seen most clearly from an examination of the proffer.
25

First, the proffer asserts that Hahn would have testified that she was home at
the time of the alleged incident. This fact was undisputed and was not
significant because the alleged crime occurred at a time when Hahn was asleep
in a different room.

26

Second, Hahn was expected to testify that the victim reported the incident to
the police because of a neighbor's instigation. This fact was uncontested, and
Hahn's testimony to that effect would have been cumulative.

27

Third, Hahn was expected to deny that the victim ever told her about the
appellant's actions. This testimony would have directly contradicted the victim's
claim that she told her mother about the incident the morning after it occurred.
Although this denial would have directly impeached the victim's testimony, the
victim's testimony contained a number of other inconsistencies. There is no
reason to believe that one more potential inconsistency on a collateral matter
would have an effect on the jurors' ultimate decision to believe the essence of
the victim's testimony even if the details were a bit unclear.

28

For example, at different points in her testimony, the victim testified that the
incident in question took place at two different locations. She was also unclear
as to the month in which it occurred. Furthermore, she gives different answers
when questioned whether the television was on during the incident. Because of
the inconsistencies already in the victim's testimony, we find that an additional
inconsistency about whether she told her mother about the incident the next
morning is not of such moment as to establish a compelling need for such
testimony.

29

Fourth, the proffer asserted that Hahn would testify that the victim was
basically untrustworthy. This testimony, although undoubtedly of some help to
the defendant, is somewhat cumulative of other evidence in the record.

30

In sum, we cannot find that Hahn's testimony would have created a reasonable
doubt in the mind of the jurors that did not already exist. Consequently, there
was not a strong need for the continuance, and its denial did not materially

prejudice the appellant. Considering all of the West factors, then, we cannot
conclude that the denial of the continuance was either arbitrary or unreasonable.
B. Did Denial of a Continuance Lead to a Fundamentally Unfair Trial?
31
32

Even if it were found that the denial of the continuance was arbitrary or
unreasonable, in order to obtain habeas corpus relief, the error alleged must rise
to the level of a constitutional violation. In effect, it must render the trial
fundamentally unfair. Under the fourth factor of the West analysis, we
concluded that the denial of the continuance did not substantially prejudice the
appellant. A fortiori, the trial was not rendered fundamentally unfair.

33

Nevertheless, we look to the entire trial to determine if there is a reasonable

probability that with Hahn's proffered testimony the verdict would have been
different. Kirkpatrick, 777 F.2d at 278-79, 280 (citing Lisenba v. California,
314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166 (1941), United States v.
Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)); see also Case,
887 F.2d at 1397.

34

The jury, in making its determination, was presented with three different
accounts of the events. First, the testimony of the victim that the appellant took
indecent liberties with her. Second, the testimony of the officer that the
appellant confessed to the crime. Third, the appellant's own testimony that he
did not commit the crime, that he did not confess, but that he was unable to
recall or remember the events and on occasion engaged in horseplay with the
victim that involved inappropriate touching of private areas.

35

Given this array of witnesses and the substance of their testimony, we conclude
that the addition of largely cumulative, impeachment testimony on collateral
matters would not have been reasonably likely to change the verdict.
Accordingly, the denial of the continuance did not render the trial
fundamentally unfair.

III. Conclusion
36

The trial court's denial of a continuance, under the circumstances of this case,
was neither arbitrary nor unreasonable under the standards set out in United
States v. West. Furthermore the denial did not deny the appellant his right to a
fundamentally fair trial. The judgment of the district court is AFFIRMED.