Marcus C. Sanders v. A.A. Lamarque, Warden

357 F.3d 943, 2004 U.S. App. LEXIS 1541, 2004 WL 193857

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 3, 2004
• Docket: 02-56893
• Status: Published

Opinions

Opinion by Judge THOMAS; Dissent by Judge HALL

OPINION

THOMAS, Circuit Judge:

Warden A.A. Lamarque appeals the judgment of the district court granting state prisoner Marcus C. Sanders’ petition for a writ of habeas corpus based on the state trial court’s dismissal of the lone holdout juror. We affirm.

I

The protection of holdout jurors from coercion has been a fundamental part of our federal jurisprudence. The Supreme Court has long held that it is improper for a trial judge to inquire as to the numerical division of a deadlocked jury. See Brasfield v. United States, 272 U.S. 448, 449-50, 47 S.Ct. 135, 71 L.Ed. 345 (1926); Burton v. United States, 196 U.S. 283, 307-08, 25 S.Ct. 243, 49 L.Ed. 482 (1905). Indeed, “[i]f a trial judge inquires into the numerical division of the jury and then gives an Allen charge, the charge is per se coercive and requires reversal.” United States v. Ajiboye, 961 F.2d 892, 893-94 (9th Cir.1992) (citations omitted). As a matter of federal law, this is true even when the judge inadvertently is informed of the division. See United States v. Sae-Chua, 725 F.2d 530, 532 (9th Cir.1984).¹

Removal of a holdout juror is the ultimate form of coercion. Thus, “ 'a court may not dismiss a juror during deliberations if the request for discharge stems from doubts the juror harbors about the sufficiency of the government’s evidence.’ ” United States v. Symington, 195 F.3d 1080, 1085 (9th Cir.1999) (quoting United States v. Brown, 823 F.2d 591, 596 (D.C.Cir.1987)). “The reason for this prohibition is clear: ‘To remove a juror because he is unpersuaded by the Government’s case is to deny the defendant his right to a unanimous verdict.’ ” Id. (quoting United States v. Thomas, 116 F.3d 606, 621 (2d Cir.1997)). As the D.C. Circuit observed:

If a court could discharge a juror on the basis of such a request, then the right to a unanimous verdict would be illusory. A discharge of this kind would enable the government to obtain a conviction even though a member of the jury that began deliberations thought that the government had failed to prove its case. Such a result is unacceptable under the Constitution.

Brown, 823 F.2d at 596.

On habeas review, we have held that the fact that a state trial judge knew that a juror was the lone holdout did not, by itself, invalidate the trial judge’s decision to excuse the juror for cause. Perez v. Marshall, 119 F.3d 1422, 1427 (9th Cir.1997). Important to our conclusion in Perez was the fact that the district court had specifically found that the state trial court’s decision was not based on “a desire to have a unanimous verdict,” but rather that the trial court “was forced to act” because of the juror’s “emotional instability to continue performing the essential function of a juror-deliberation.” Id.

II

This case involves the removal of the lone holdout juror after the state trial court learned of that fact. Here, on the third day of jury deliberations, the jury foreperson (Juror 2) sent the trial court a note complaining that Juror 4 was not properly following the court’s instruction “not to be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.” The trial court responded by inviting Juror 2, Juror 4, and then Juror 3 separately into chambers for further questioning. All three jurors were questioned individually and only in the presence of counsel. Although the court attempted to avoid soliciting the information, it became clear through the interviews that the jury was split 11 to 1 and that Juror 4 was the only juror in favor of acquittal — a fact that the trial judge acknowledged on the record as being “obvious.”

Juror 2 told the court that Juror 4 “was putting her emotions into play, and that she just felt that she believed everything that the defendant said.” Juror 2 reported that Juror 4 had stated that she did not trust the police and felt that the police had been badgering a key prosecution witness. Juror 2 testified that she finally told Juror 4, “It is not just my judgment but the judgment of 11 jurors [that] you are incapable of doing this. So I have no other choice but to send[the judge] this note.”

When questioned, Juror 4 testified that she went into deliberation paying attention to both sides; that she “deeply” felt that she was fair and objective; that she requested that the jury go through the witnesses one by one — a request that initially was rebuffed by the other jurors; and that she had pointed out some parts of the evidence about which there could be doubt. She testified that the other jurors had pressured her, specifically noting that:

[On] Friday I was pretty beat up on in that room by the other fellow jurors. I was told I was very confused. I was told, “you are acting like a kid.” I was told a lot of things by the fellow jurors. So as far as the case, I feel pretty solid.

Later, she testified that after another juror made the statement that the jury was not getting anywhere because Juror 4 was not going to change her mind, Juror 4 told her fellow jurors:

At that point, I made a statement saying, “I — -I know at this moment you are feeling like I’m holding all of you up. I feel like this now. You are making me feel like this.” I said, “But I cannot change something I feel inside. I have doubt, I don’t want to change my decision just to please you.”

Juror 4 then offered to the other jury members to excuse herself for the purpose of moving deliberations forward, if that were allowed. She testified that later in the afternoon, one juror stated that “we’re at a deadlock. Why don’t we just sign that we can’t come to any decision.” Juror 4 testified that in response:

The foreman then said, “No, no, I can’t live with myself putting someone on the street who is going — who will kill again. And so I just — no, no, I can’t.” I said, “Well, don’t you see I feel just as strongly as you do about how you feel.” I said, “You feel that way. I don’t.” I said, “But I’ll tell you this: do whatever at this point you feel you must do to just move this on.” I said, “I don’t feel that it’s fair for you to make me want to change how I feel.” I said, “I have to leave this place and live with myself, too. I wouldn’t feel too good about myself if I just made a decision just to please you. I have to go by what I truly feel inside, and these things are the way I feel.”

It was at that point in the discussions that the foreperson decided to send the note to the judge. After hearing the testimony of the foreperson, Juror 4 and a third juror, the trial judge concluded that Juror 4 was not prejudiced and should not be removed from the jury because of bias or inability to follow instructions. This finding has been uncontested, both on direct appeal and in habeas proceedings.

However, during the in camera discussions, a second issue emerged. Based on Juror 4’s testimony, the prosecution questioned whether or not she had been truthful in voir dire. During voir dire, the trial court asked the prospective jurors preliminary questions, and then announced that the nature of the case involved a murder with a handgun. The court inquired whether anyone had experiences that would interfere with his or her ability to assess the evidence objectively.

A couple of prospective jurors volunteered information, including a woman, later selected to be Juror 4, who informed the trial court that her grandnephew was murdered in the past year after being shot 21 times. After being assured that Juror 4 could be objective, the court asked her whether the killing was gang related, to which Juror 4 responded, “That may have been. That may have been the reason.” Neither the court, the defense, nor the prosecution elected to follow up with further questions.

The trial court next informed the jury pool of the location of the murder and asked: “Is there anyone who is familiar with that location because you work there, live there, had some — your job brings you to [that] location, you repair phones in that location, whatever it is, you are somehow aware and know that location?” Juror 4 did not respond to this question.

The trial court posed the following question: “Have you, your family members or any close friends ever been the victim of any violent crime or any crime in which a weapon was brandished or used?” Juror 4 responded by reminding the court that her grandnephew was murdered and affirming her belief that she could be impartial in evaluating evidence presented in a similar killing.

The trial court also inquired: “Have you, your family members or any close friends ever been accused of a crime, or arrested for any crime or investigated regarding a crime regardless of whether you were ever ultimately tried or convicted?” Juror 4 explained that her son was convicted and incarcerated for check fraud. On a follow-up question, she responded that she had visited him at the facility in which he was held.

After a few more questions, the court asked whether anyone had “ever visited a jail facility.” Juror 4 reminded the court that she had visited her son while he was incarcerated.

The court proceeded to ask a series of questions including: “Do you live or work in an area where drugs are openly sold or used?”; “Do you live or work in an area where there is open gang activity?”; and “Do you have any close friends or family members who are gang members?” Juror 4 did not respond to any of the questions.

The court then asked, “What general area of Los Angeles do you live in? North, South, East, or West?” Juror 4 explained that she lived in West Los Ange-les, “in the Ladera Heights.”

The court also asked “[I]s there anyone here who has any particular expertise in the area [of gangs] or anyone who has studied the area, taken sociology classes on the issue? Anything above reading about it in the newspapers and the news?” Juror 4 did not respond. The court proceeded by asking individual jurors various questions regarding gangs, and then asked the entire jury, “Is there anyone who has a different opinion on that issue, that gang membership makes it impossible for that particular gang member to be an honest citizen?” Juror 4 again did not respond.

Based on her testimony in camera, the prosecution suggested that Juror 4 be disqualified because she had lived in the South Central area twenty-five years ago, approximately twenty blocks from the neighborhood at issue, even though she had not been back to that location in nearly twenty years.

When asked why she had not revealed during voir dire that she had once lived in the neighborhood and that her sons associated with gangs, Juror 4 explained that:

I did not [answer the question affirmatively] because I do not, to my knowledge, live in an area [that has gangs], and you asked me do I know of or live in an area [with gangs]. I do not. I live in West Los Angeles. My sons were in their teens [when I lived in the South Central area]. One would be 40 next week, and the other is 34. They were like small kids when I stayed over in an area that — well, the reason why I’m saying in an area, actually it was on 99th and Broadway in Los Angeles ... which is not far from that area [where the murder occurred].... So when I was asked do I live in an area [with gang activity], to my knowledge I do not because I haven’t been in that area [where the murder took place] since then.

At the conclusion of the argument, the trial court ordered the removal of Juror 4 because “she did fail to disclose ... that her sons claimed gang affiliation, and she lived in a neighborhood where apparently there was ... gang activity going on.” After Juror 4 was replaced with an alternate, the jury reached a guilty verdict in approximately three hours.

After unsuccessfully pursuing his direct appeal and state collateral remedies, Sanders filed a petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254. The district court granted the writ, a decision we review de novo. See Benn v. Lambert, 283 F.3d 1040, 1051 (9th Cir.2002), cert. denied, 537 U.S. 942, 123 S.Ct. 341, 154 L.Ed.2d 249 (2002). Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132,110 Stat. 1214 (Apr. 24, 1996), the state court’s factual findings that underlie the district court decision are entitled to a presumption of correctness, unless the petitioner can prove otherwise by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Zichko v. Idaho, 247 F.3d 1015, 1019 (9th Cir.2001). When a state court does not find a constitutional violation, a federal court may grant relief if the state court’s decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). “ ‘Under § 2254(d)(l)’s ‘unreasonable application’ clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.’ Rather, that application must be objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).

Ill

Given the applicable law and factual record, the district court properly concluded that there was clear and convincing evidence showing that the state trial court made an objectively unreasonable determination of the relevant facts. Under the circumstances presented here, the trial court committed constitutional error when, after learning that the juror was unpersuaded by the government’s case, it dismissed the lone holdout juror. The trial court’s justification was founded on the prosecutor’s representation that he would have exercised a peremptory challenge to disqualify the juror if he had known of the additional material disclosed during the in camera juror examination. Specifically, the Court stated: “the reason that I excused the juror was I felt that she had failed to disclose significant information during voir dire and that the prosecution was deprived of pertinent information in making their peremptory challenges.” A trial court, however, may not remove a juror to accommodate the prosecution’s desire to exercise a peremptory challenge after a jury has been impaneled. See McDonough Power Equip. Inc. v. Greenwood, 464 U.S. 548, 555, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) (“A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination.”).

The State argues that the trial judge was justified in its decision because of the juror’s purported dishonesty in answering voir dire questions. The State does not rely on actual bias. Indeed, it does not contest the trial court’s factual finding that the juror did not possess actual bias. Rather, the State claims that the trial court was entitled to dismiss the juror on the basis of implied bias. “Unlike the inquiry for actual bias, in which we examine the juror’s answers on voir dire for evidence that she was in fact partial, the issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced.” United States v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir.2000) (citations and internal quotation marks omitted) (emphasis in Gonzalez). Prejudice will be presumed under circumstances in which “the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.” Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir.1990) (citations and internal quotation marks omitted). For instance, federal courts have found implied bias in circumstances “where the juror is apprised of such prejudicial information about the defendant that the court deems it highly unlikely that he can exercise independent judgment even if the juror states he will,” and “[t]he existence of certain relationships between the juror and defendant ... support such a presumption [of bias].” Id. at 528 (citations omitted). Implied bias will be found only in “exceptional” or “extraordinary” cases. Smith v. Phillips, 455 U.S. 209, 222 n. *, 102 S.Ct. 940 (1982) (O’Connor, J., concurring).

When establishing juror bias, “a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial.” McDonough, 464 U.S. at 556, 104 S.Ct. 845.

Here, after a thorough examination, the district court rejected the State’s allegation of implied bias, holding that Juror 4 provided responsive and direct answers to questions posed to her, that she was forthcoming with information during voir dire, that there was no evidence that she intentionally or unintentionally concealed information, and that there was no evidence that she harbored bias or impermissible prejudice during the deliberation process.

An examination of the record supports the district court’s conclusion. Juror 4 did, in fact, truthfully answer the direct questions posed to her. The trial court’s conclusion that “she did fail to disclose ... that her sons claimed gang affiliation, and she lived in a neighborhood where apparently there was ... gang activity going on” is simply and objectively incorrect. Juror 4 answered questions about her sons’ activities in detail and did not, in fact, live “in a neighborhood where apparently there was ... gang activity going on.” She had, a quarter of a century previously, lived in a neighborhood in some proximity to the crime scene, but that was not the question posed to her. As explained by the district court, not only was Juror 4’s interpretation of the questions on voir dire reasonable, but an independent review of the record demonstrates that, by all measures, it was the correct one. All of the questions posed by the trial court relating to familiarity with the neighborhood were couched in the present tense. Whereas the trial court elected to inquire whether jurors expressly had present and past encounters with particular experiences such as visiting a jail, being a victim of crime, being accused of a crime, the knowledge of the neighborhood expressly was conditioned on the juror’s present-day residence, work, or other reason that brought her into that neighborhood on a regular basis.

Likewise, all of the questions relating to gangs were specific questions about actual gang membership, academic expertise about gangs, and whether anyone presently lives or works in an area with a known gang presence. These questions expressly asked about discrete and particular contacts with gangs and are not open-ended queries into all possible contacts with gangs or gang members. In light of this record, any claim of implied bias becomes untenable.

As a final matter, it is highly significant that the trial court made a preliminary determination that Juror 4 was impartial, objective, and did not hold impermissible bias. Only after considering argument by the prosecution did the trial judge reverse her preliminary decision and remove the juror. The reason given was that the prosecution “argued persuasively to me that they would have challenged her” if it had known of her life experiences. However, the record demonstrates that any failure by the prosecution to discover information regarding Juror 4’s prior residence and the interactions that her sons had with gangs 20 years earlier was due to its own lack of diligence and not any concealment or deliberate withholding of information by Juror 4.

Thus, based on a complete examination of the record, the district court properly concluded that there was clear and convincing evidence showing that the state trial court made an objectively unreasonable determination of the relevant facts.

AFFIRMED.

1 . The Sixth Amendment to the Constitution establishes that a criminal defendant has a right to a fair and impartial jury. U.S. CONST, amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial juiy....”). This right applies to defendants in state court, through the action of the Fourteenth Amendment. See Williams v. Florida, 399 U.S. 78, 86, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970).