Gregorio Jimenez v. E.R. Myers, Warden Attorney General of California

12 F.3d 1474, 93 Cal. Daily Op. Serv. 9006, 93 Daily Journal DAR 15509, 1993 U.S. App. LEXIS 31649, 1993 WL 500960

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 8, 1993
• Docket: 91-56476
• Status: Published

Opinions

PER CURIAM:

Gregorio Jimenez appeals the district court’s denial of his petition for a writ of habeas corpus based on the claim that the state trial judge coerced the jury into rendering a guilty verdict in violation of Jimenez’s Fourteenth Amendment right to due process.

I.

Jimenez fired two shots through the front door of his cousin’s house after she ran inside following an argument. He was convicted of attempted murder. At trial he claimed he intended only to frighten his cousin and had not fired until he believed she had moved away from the door. In an effort to gain an acquittal, Jimenez and his counsel made a “tactical decision ... not to seek any lesser included ■ offenses or submit instructions thereon for the jury’s consideration.” In addition to describing the elements of attempted murder and giving other standard charges, the court instructed the jury that each juror should decide the case after discussion, but without succumbing to the pressure of the majority.¹

After four and three quarter hours of deliberations, the jury sent the judge a note stating, “We are unable to reach a verdict and feel strongly that we would not be able to reach a verdict.” Defense counsel took the position that “[i]n a case like this with this type of emotions and feelings, if they’re deadlocked now, they’re rarely going to change.” The court called in the jury and engaged in the following exchange with the foreperson:

THE COURT: What I would like to know, how many votes have been taken?

FOREPERSON: Five or six.

THE COURT: Without telling me which direction, just numerically, how did it start, and what was it on the last?

FOREPERSON: [I will] Try to tell you numerically without [indicating] either way. To the best of my recollection, it started out about maybe seven to five, eight to four. Went to nine to three. All right. To back up, this morning, nine, two, and one.... This afternoon though, nine to three.

* * * * * *

THE COURT: All right. So you did have — how about in between, nine-two and one and then nine-three, has there been any movement one way or the other?

FOREPERSON: Nine-one-two, I would say at this point. And yes, there has been some movement in one direction.

THE COURT: Okay. Well, that’s what’s important to me because of the nature of the type of case. I want to find out that there has been movement.

After a three-day weekend, the jury returned to its deliberations. Three hours later, the jury sent another note to the court stating, ‘We are at an impasse and request further direction.” The prosecutor responded, “If the impasse means that they’re once again hopelessly hung, perhaps now would be the time to accept that and set it for retrial.” Defense counsel agreed, “Any further pressure upon [the jury] would be prejudicial to the defendant.” The court declared it would bring the jurors back to the courtroom to “see if there’s been any substantial movement at all. If there has not been, then I’ll have to declare a mistrial.”

The court’s questions to the jury and the foreperson’s responses were as follows:

THE COURT: Okay. Now last Friday I inquired of you as to whether or not there had been any movement by the jury. So I’ll ask you that same question again with the understanding, all I want is numbers, not which direction you’re at. How many votes have you taken since last Friday?

FOREPERSON: Two or three. Two.

COURT: Two more?

FOREPERSON: Un-huh.

COURT: What’s the latest?

FOREPERSON: Eleven-one.

COURT: So there has been, then, substantial movement since the last time.

FOREPERSON: Yes.

THE COURT: All right. Due to the fact we have had that type of movement, I would request, then, to finish the rest of today and see where we are at that point in time. All right? Okay.

Defense counsel objected and asked the court to inquire whether further deliberation would be fruitful. Counsel explained, “if there’s one person in there' that’s for not guilty, it’s putting them on a tremendous amount of pressure, and I don’t think they should be subjected to that pressure.” The court concluded the hold-out juror would not be subjected to “undue pressure” in light of the substantial change in the vote within the jury in the course of their deliberations and because the jury had been asked to deliberate “the rest of today” — about two more hours. The jury returned a guilty verdict after an hour and forty-eight minutes of additional deliberation.

Jimenez raised the issue of jury coercion without success on appeal to the California Court of Appeal and in a petition for review to the California Supreme Court. Jimenez then filed this petition for a writ of habeas corpus.

The magistrate judge recommended the writ be granted on the ground the state trial judge had coerced the hold-out juror into joining in the guilty verdict. The magistrate judge noted that the state trial judge twice polled the jury about the jury’s numerical division on the merits after the jury had announced an impasse; that the prosecution and defense agreed to accept a deadlock after the jury’s second note, but the court refused; and that the judge’s comments to the jury strongly implied the jury’s movement from an initial division of seven to five to a division of eleven to one should continue toward unanimity. 'The district court disagreed, stating, inter alia, that the hold-out juror would not have felt coerced because he or she would have known the judge would declare a mistrial at the end of the day.

II.

Whether.the trial judge coerced the jury into rendering a guilty verdict is a mixed question of law and fact “requiring the application of legal principles to the historical facts.” Hamilton v. Vasquez, 882 F.2d 1469, 1471 (9th Cir.1989). Accordingly, our review of the “legal weight” given to the facts is de novo. See Sumner v. Mata, 455 U.S. 591, 597 & n. 10, 102 S.Ct. 1303, 1306-07 & n. 10, 71 L.Ed.2d 480 (1982); Hamilton, 882 F.2d at 1471; Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir.1988). We consider- whether the court’s actions were coercive under a totality of the circumstances test. See United States v. Seawell, 550 F.2d 1159, 1163 (9th Cir.1977) (“the general test of whether a supplemental jury instruction is in error is to consider all the circumstances to determine if the instruction was coercive”); Marsh v. Cupp, 536 F.2d 1287, 1290 (9th Cir.1976) (test for jury coercion is “ “whether in its context and under all the circumstances of this case the statement was coercive’”).²

Although this case does not specifically involve review of an Allen charge, see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), clearly our Allen charge cases are relevant. They consider, four factors in determining whether there has been undue coercion:

1) the form of the supplemental instruction;

2) the period of deliberations following the instruction;

3) the total time of deliberations;

4) any indicia of coereiveness or pressure.

United States v. Wauneka, 842 F.2d 1083, 1088 (9th Cir.1988). We consider the same factors in this case to determine whether, under the totality of the circumstances, the trial judge coerced the jury. We recognize, however, that coercion must be more severe to constitute a violation of due process than to invoke our supervisory powers. See Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974).

1) The Form of the Exchange Between Judge and Jury — The jury twice informed the trial judge it had reached an impasse. The trial judge twice asked the jury for their numerical split on the merits, and both times sent the jury back for further deliberations on the stated ground there had beén movement toward unanimity. The court indicated its approval of the movement and expressed the hope it would continue. The form of the exchange placed pressure first on the three hold-out jurors, and finally on the single hold-out juror, to join the others in the movement toward unanimity.

Because an Allen charge carries the potential for jury coercion, we require a trial judge using the charge to instruct jurors not to surrender their sincere convictions when they reassess their positions. United States v. Bonam, 772 F.2d 1449, 1451 (9th Cir.1985); United States v. Mason, 658 F.2d 1263, 1268 (9th Cir.1981) (“the integrity of individual conscience in the. jury deliberation process must not be compromised”). Although the trial judge in this ease placed pressure, on the hold-out jurors to reconsider their views, he did not remind them no juror “should be influenced to decide any question in a particular way because a majority of the jurors ... favor such a decision.”³ “It is essential [in cases where the trial judge’s actions and comments place pressure on hold-out jurors] to remind jurors of their duty and obligation not to surrender conscientiously held beliefs simply to secure a verdict for either party.” Mason, 658 F.2d at 1268.

2) Period of Deliberation After the Exchange — The jury reached its verdict one hour and forty-eight minutes after returning to deliberations following the second note.⁴ This period does not raise an inference of coercion. Compare Bonam, 772 F.2d at 1451 (no inference of coercion for verdict delivered an hour and a half after Allen charge where issue was simple and jury told it could take as much time as it needed), with United States v. Contreras, 463 F.2d 773, 774 (9th Cir.1972) (reversing a conviction rendered thirty-five minutes after an Allen charge because the instruction was premature and coercive).

3) Total Time of Deliberations — The jury deliberated a total of nine and a half hours. This was not “so disproportionate to the task before the jury as to raise an inference” of coercion. United States v. Beattie, 613 F.2d 762, 766 (9th Cir.1980).

4) Indicia of Coerciveness or Pressure — The trial judge knew the jury was divided nine to three when he told them to continue their deliberations after their initial impasse; he knew they were divided eleven to one after the second impasse. The trial judge, as we have already said, failed to admonish them not to surrender their sincere convictions. The fact that the court asked the jury to continue to deliberate only for the balance of the day was not enough to remove the pressure on the hold-out juror. The court made clear it approved of the jury’s movement toward unanimity and indicated “that type of movement” should continue, but did not suggest to the jury in any way that the court would declare a mistrial if no verdict was returned by the end of the day. After the second impasse, both the prosecutor and the defense believed a new trial was required.

This case is analogous to Jones v. Norvell, 472 F.2d 1185 (6th Cir.1973). The court vacated a state conviction after the trial judge learned the jury was deadlocked eleven to one, informed the jury it was their duty to reach a verdict, and told the jury to try to make progress in their deliberations. The jury returned a guilty verdict almost immediately. The Sixth Circuit said,

the facts recited above involved the invasion of jury secrecy, the identification of a deadlocked jury’s majority-minority count, a coercive jury charge, and the speedy return of a verdict subsequent to the charge. These facts constitute a totality of circumstances which violate the constitutional rights of appellants to a fair and impartial jury trial under the Sixth and Fourteenth Amendments.

Id. at 1186 (citations omitted). Although in the present case the jury was not told it had a duty to reach a verdict, the judge’s comments, twice repeated, clearly conveyed the message that the hold-out juror should promptly join the majority.

If this were a federal case subject to our supervisory powers, the trial judge’s first inquiry into the numerical division of the jury would have required reversal. Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). Since Brasfield’s per se rule rests on the supervisory power, it does not apply in federal habeas review. Lowenfield v. Phelps, 484 U.S. 231, 239-40 & n. 3, 108 S.Ct. 546, 551-52 & n. 3, 98 L.Ed.2d 568 (1988); Locks v. Sumner, 703 F.2d 403, 406 (9th Cir.1983). Upon review of the totality of the circumstances of this case, however, including the facts that the court repeated the inquiry into the numerical division of the jmy, told the jury it should seek unanimity when there was only a single hold-out, and failed to admonish individual jurors not to surrender their individual views simply to achieve a verdict, we conclude the state trial judge violated Jimenez’s due process rights by impermissibly coercing the jury to render a guilty verdict.⁵

Reversed.

1 . The court stated,

Both the people and the defendant are entitled to the individual opinion of each juror.

It is the duty of each of you to consider the evidence for the purpose of arriving at a verdict if you can do so. Each of you must decide the case for yourself, but should do so only after a discussion of the evidence and instructions, with the other jurors.

You should not hesitate to change an opinion if you are convinced it is erroneous. However, you should not be influenced to decide any question in a particular way because a majority of the jurors, or any of them, favor such a decision.

2 . Other circuits apply the same test. E.g., Williams v. Parke, 741 F.2d 847, 850 (6th Cir.1984) (totality of circumstances); Cornell v. Iowa, 628 F.2d 1044, 1048 (8th Cir.1980) (same); Ellis v. Reed, 596 F.2d 1195, 1197-1200 (4th Cir.1979) (same). The totality of the circumstances standard had its origin in Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965). In reversing a conviction obtained after the judge told the jury it was required to reach a verdict, the Supreme Court stated, "Upon review of the record, we conclude that in its context and under all the circumstances the judge's statement had the coercive effect attributed to it.” Id. at 446, 85 S.Ct. at 1060. See Lowenfield v. Phelps, 484 U.S. 231, 237, 108 S.Ct. 546 (1988) ("Our review of petitioner's contention that the jury was improperly coerced requires that we consider the supplemental charge given by the trial court 'in its context and under all the circumstances.’") (quoting Jenkins); Seawell, 550 F.2d at 1163 (citing Jenkins); Marsh, 536 F.2d at 1290 & n. 6 (same).

3 . At oral argument, the State seemed to suggest the trial court could not repeat the cautionary admonition because the California Supreme Court has prohibited use of the coercive portion of the Allen charge. The California court has prohibited use of any supplemental charge that (1) directs minority or hold-out jurors to reconsider their views in light of the majority, (2) informs the jury that the case will be retried and decided eventually, or (3) informs the jury of the expense and inconvenience of retrial. People v. Barraza, 23 Cal.3d 675, 153 Cal.Rptr. 459, 591 P.2d 947, 949 (1979); People v. Gainer, 19 Cal.3d 835, 139 Cal.Rptr. 861, 867-70 & n. 16, 566 P.2d 997, 1003-06 & n. 16 (1977), but also has permitted California trial courts to provide supplemental instructions reminding jurors not to surrender their convictions simply because a majority of jurors has taken a different view of the case, People v. Sheldon, 48 Cal.3d 935, 258 Cal.Rptr. 242, 254-56, 771 P.2d 1330, 1343-44 (1989); People v. Keenan, 46 Cal.3d 478, 250 Cal.Rptr. 550, 582-88, 758 P.2d 1081, 1113-18 (1988).

4 . Jimenez filed a motion that we take judicial notice of the trial minutes. They are part of the state court record and available for review without a motion.

5 . We announce no “new rule as a concomitant of due process," as the dissent suggests, but simply apply the well-established "totality of the circumstances" test. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) does not apply.