                                                                                 F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                 MAR 31 1997
                                    TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk

 ROBERT HENDERSON, JR.,

                Petitioner-Appellant,
                                                               No. 95-2206
           v.                                            (D.C. No. CIV-92-5-JC)
                                                            (D. New Mexico)
 ROBERT TANSY,

                Respondent-Appellee.




                              ORDER AND JUDGMENT*


Before SEYMOUR, LOGAN and LUCERO, Circuit Judges.



       Petitioner Robert Henderson, Jr. was convicted in New Mexico state court of

murder, criminal sexual penetration, kidnapping, burglary and larceny and sentenced to

death. On direct appeal, the New Mexico Supreme Court reversed petitioner's death

sentence; on remand he received a life sentence. Petitioner exhausted his state court

remedies before filing this 28 U.S.C. § 2254 petition raising fifteen issues. The district

court dismissed the petition on its merits and denied a certificate of probable cause to


       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
appeal. We have examined the voluminous record. Although we deny relief, we have

determined that petitioner has demonstrated a sufficient showing of a denial of a federal

right to warrant granting a certificate of appealability in order to discuss the merits of the

three claims petitioner briefed and pressed in the oral argument we allowed on appeal.

See Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996) (applying same standard to pre-

AEDPA petitions as to those filed after its effective date), cert. denied, 117 S. Ct. 746

(1997).

       Petitioner argues that his trial was fundamentally unfair because: (1) the

prosecutor's peremptory strikes of one Native American and three Hispanic venire

members violated the rule of Batson v. Kentucky, 476 U.S. 79 (1986); (2) admission of

his uncounseled statements to police violated the rule of Miranda v. Arizona, 384 U.S.

436 (1966); and (3) the trial court denied him due process when it refused in camera

inspection of a detective's personnel file and internal investigation.

                                               I

       Batson held that a defendant can establish a prima facie case of purposeful racial

discrimination in selection of the jury in the following manner:

       [T]he defendant first must show that he is a member of a cognizable racial
       group, and that the prosecutor has exercised peremptory challenges to
       remove from the venire members of the defendant's race. Second, the
       defendant is entitled to rely on the fact, as to which there can be no dispute,
       that peremptory challenges constitute a jury selection practice that permits
       those to discriminate who are of a mind to discriminate. Finally, the
       defendant must show that these facts and any other relevant circumstances


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       raise an inference that the prosecutor used that practice to exclude the
       veniremen from the petit jury on account of their race.

Batson, 476 U.S. at 96 (citations and quotations omitted). "Once the defendant makes a

prima facie showing, the burden shifts to the state to come forward with a neutral

explanation" for the strike. Id. at 97. A neutral explanation is "based on something other

than the race of the juror" and "[u]nless a discriminatory intent is inherent in the

prosecutor's explanation, the reason offered will be deemed race neutral." Hernandez v.

New York, 500 U.S. 352, 360 (1991); Purkett v. Elem, 115 S. Ct. 1769, 1771 (1995) ("a

'legitimate reason' is not a reason that makes sense, but a reason that does not deny equal

protection"). The trial court then determines whether a defendant has proven purposeful

discrimination. Whether a prosecutor's explanation for peremptory strikes is race neutral

is a question of law, United States v. Sneed, 34 F.3d 1570, 1580 (10th Cir. 1994), but

whether intentional discrimination occurred is a question of fact. United States v.

Johnson, 4 F.3d 904, 913 (10th Cir. 1993), cert. denied, 510 U.S. 1123 (1994).

       Petitioner contends that the prosecutor failed to articulate a race neutral

explanation for striking Cynthia Parr, a Native American, when the defense raised a

Batson objection during jury selection. Petitioner, a Navajo Indian, established a prima

facie Batson violation because the government used a peremptory strike to remove Parr,

the only Native American venire member. United States v. Joe, 8 F.3d 1488, 1498-99

(10th Cir. 1993) (use of peremptory strike of only Native American on venire raises

inference of exclusion due to race), cert. denied, 510 U.S. 1184 (1994). The prosecutor,

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however, offered a race neutral reason for the strike when he originally challenged Parr

for cause on the basis of her alleged inability to vote for the death penalty. See IX R.

1471-74 (detailed explanation of why Parr should not be on the jury).

       Shortly after the trial court denied the for-cause challenge of Parr, court recessed

from 11:45 a.m. until 2:00 p.m. The prosecution exercised its peremptory strike soon

after that break. When defense counsel raised a Batson objection to the peremptory strike

the prosecutor offered to state his reasons. To this the court answered: "There are

sufficient reasons from your questioning of Ms. Parr. I think you established more than

sufficient grounds. That is reflected on the record for the State's striking of Ms. Parr. I

see no pattern of racial motivation at this point." Id. at 1492. The trial court's failure to

ask the prosecutor to restate reasons for striking Parr does not detract from the detailed

substance of the prosecution's recent for-cause challenge. See Hernandez, 500 U.S. at

362-63 (citing Batson) ("While a reason offered by the prosecutor for a peremptory strike

need not rise to the level of a challenge for cause, the fact that it corresponds to a valid

for-cause challenge will demonstrate its race-neutral character."). Petitioner points out

that the trial court misstated the Batson test as requiring a pattern of racially-motivated

strikes; but such a pattern is only one possible indicator to bolster a defendant's prima

facie showing. United States v. Esparsen, 930 F.2d 1461, 1465 (10th Cir. 1991), cert.

denied, 502 U.S. 1036 (1992). The record supports the trial court's conclusion that

defendant failed to prove intentional discrimination.


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       Petitioner also challenges the government's peremptory strikes of three Hispanic

jurors as racially discriminatory. Although the defense objected to the prosecutor's

peremptory strike of Parr as racially discriminatory, the record reflects that the

government and trial court both understood the objection was directed only at Parr. The

trial court's ruling mentioned only Parr, and defense counsel did not restate the objection

to include the three Hispanic jurors. Thus, we agree with the government that defense

counsel did not contemporaneously object to those strikes. Petitioner's failure to timely

object is not cured by his pretrial motion requesting that the prosecutor state reasons

during voir dire for exercising peremptory strikes; the trial court directed defense counsel

to raise such issues at voir dire. Our review of the record reveals no plain error in

upholding those peremptory strikes. See United States v. Contreras-Contreras, 83 F.3d

1103, 1104 (10th Cir. 1995) ("Batson objection must be made as soon as possible, and

preferably before the jury is sworn"), cert. denied, 117 S. Ct. 259 (1996).

                                              II

       Petitioner contends that the trial court should have suppressed his incriminating

statements to police officers because they were involuntary. The government must prove

by a preponderance of the evidence that petitioner, who did not have counsel, voluntarily

waived his right to remain silent. Miranda, 384 U.S. at 467-74 (officers must inform

persons in custody that they may refuse interrogation and that they have the right to

counsel); Moran v. Burbine, 475 U.S. 412, 421 (1986) (government must show that


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defendant voluntarily relinquished his rights and that he was fully aware of the rights

being abandoned). The trial court's factual findings are entitled to great deference, but the

ultimate issue of voluntariness is a legal question. Arizona v. Fulminante, 499 U.S. 279,

287 (1991). We determine voluntariness by examining the totality of the circumstances

surrounding petitioner's statements to police: the suspect's maturity, intelligence,

education, mental and physical health; the length and location of the interview; whether

the suspect was advised of his constitutional rights; and whether the police conduct was

punitive or coercive. Withrow v. Williams, 507 U.S. 680, 693-94 (1993); Schneckloth v.

Bustamonte, 412 U.S. 218, 225-27 (1973).

       About one month after the murder, Albuquerque police arrested petitioner on

unrelated charges. When they learned that he matched the description of the man last

seen with the murder victim's suitcase, and that his fingerprints were found at the murder

scene, detectives Frank Troup and Joel Olson took petitioner from the county jail and

escorted him across the street to a police department interview room. The officers'

testimony and petitioner's account of the encounter differ.

       The officers testified as follows: They only talked with petitioner en route to tell

him they wished to interview him. Upon reaching the interview room they told petitioner

that he was a suspect in a murder investigation. They gave petitioner Miranda warnings

and he signed a waiver of rights form and initialed each enumerated right waived. After

they told petitioner that his fingerprints matched those at the murder scene, he made


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incriminating statements that placed him at the murder scene engaging in conduct

consistent with the victim's condition. Petitioner signed a permission to search form and

provided body fluid and hair samples. Although petitioner agreed to give a written

statement he changed his mind upon arriving at the word processing center. He then

requested counsel and signed a typed refusal.

       In contrast, petitioner testified that he signed a refusal to waive his rights at the

outset of the interview. He claimed that Troup left the interrogation room with the signed

form but returned and began threatening him with the death penalty. Petitioner said that

he felt afraid and ill from alcohol withdrawal symptoms and eventually agreed to talk

because the officers promised lenience if he gave a statement. Petitioner claims he signed

the waiver form after giving the officers an oral statement, and denied going to the word

processing area.

       The trial court denied petitioner's motion to suppress his oral statements, but

reopened the matter to consider his polygraph test results that might reflect on the

credibility of the officers' testimony as to when petitioner first requested counsel. The

trial court found that the officers' testimony was more credible than petitioner's, and

discounted the results of his polygraph test. The trial court ultimately determined the

statements were voluntary and denied suppression.




                                              -7-
       In arguing that he did not voluntarily waive his right to counsel before providing

police with statements about the crime petitioner relies heavily on a polygraph test that

indicates he requested counsel before giving the statement. He also contends that the

officers' failure to record the interview and a one-day delay in his arraignment is evidence

of involuntariness.

       We defer to the trial court's factual findings and conclude that petitioner's

statements were voluntary as a matter of law. See 28 U.S.C. § 2254(d) (trial court’s

factual findings presumed correct unless exception applies). Petitioner acknowledged

receiving Miranda warnings at the outset of the interview, which satisfies one criteria in

the totality of the circumstances analysis.

       The officers denied using threats or promises to coerce petitioner to submit to

interrogation. Olson testified that petitioner did not request counsel during the interview,

and never complained that his alcohol withdrawal symptoms impaired his ability to think

clearly and respond appropriately; petitioner admitted that he understood what was

transpiring despite feeling ill. We cannot say that the polygraph examination should have

weighed more heavily in the trial court's ruling. It was obtained under "friendly"

circumstances and did not address other areas where petitioner's testimony differed

significantly from that of the officers--notably his allegations of promised leniency and

death penalty threats--nor the ultimate issue of guilt.




                                              -8-
       After the interview, petitioner wrote out his refusal to provide a signed written

statement, even though the typed form stated that he requested an attorney. This supports

a finding that petitioner made a conscious choice to submit to the interview but later was

able to refuse to sign a written statement. Petitioner's allegations that the officers made

promises and threats that overbore his will is not consistent with this conduct. United

States v. Short, 947 F.2d 1445, 1450 (10th Cir. 1991), cert. denied, 503 U.S. 989 (1992).

       Petitioner's personal characteristics also do not demonstrate he was particularly

susceptible to improper influence. Petitioner had an arrest record and had waived his

rights and voluntarily provided statements to police on other occasions, indicating a

familiarity with the process and consequences of his choices. The officers interviewed

petitioner in nonoppressive surroundings, without handcuffs or leg shackles, and had him

in their custody for only about two hours before returning him to the county jail.

       Failure of the officers to use available recording equipment to preserve an

interview is not determinative. United States v. Short, 947 F.2d at 1451. The alleged

delay in arraignment does not help petitioner's case; his interview concluded after

expiration of the arraignment period for that day and he was arraigned the following

afternoon. This delay is not unreasonable nor strong evidence of police efforts to compel

an uncounseled confession, even though, as petitioner argues, the fingerprint evidence

and physical description together supported probable cause for petitioner's arrest in the

absence of the interview. United States v. Chadwick, 415 F.2d 167, 171 (10th Cir. 1969)


                                             -9-
(officers not duty-bound to arrest suspect when probable cause established, altogether

foregoing pre-arrest interrogation).

                                             III

       Petitioner contends that denial of his motion for discovery or in camera inspection

of Troup's personnel file and other internal affairs records deprived him of due process

and foreclosed his Fifth Amendment claim because the requested records may have

contained information reflecting negatively on Troup's credibility. Petitioner appears to

assert two reasons for his discovery request: that the trial court may have ruled favorably

on his suppression motion if it found more credible his testimony that he requested

counsel at the start of the interview, and that the requested information may have been

useful in cross-examining Troup or challenging his credibility at trial. This is essentially

a request for a fishing expedition into Troup's personnel file. We are not impressed by

petitioner's arguments. The trial court had testimony from two officers and petitioner. It

did not have to resolve a "swearing match" solely between petitioner and Troup because

Olson provided similar testimony to that of Troup. Whether Troup truthfully testified that

petitioner promptly waived his right to counsel was not a jury issue; the trial court

determined as a matter of law that petitioner's statements to Troup and Olson were

voluntary.

       We also note that petitioner's defense was lack of intent and accident. He admitted

that he lied in his interview with the officers about having breakfast and consensual sex


                                            - 10 -
with the victim. These statements, along with his multiple admissions that he beat and

raped the victim, were more incriminating than his interview with Troup and Olson. We

hold that the trial court's refusal to allow petitioner to engage in a fishing expedition into

Troup's personnel file and internal police department records did not deny him due

process.

       AFFIRMED.

                                            Entered for the Court

                                            James K. Logan
                                            Circuit Judge




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