Paul Michael THOMPSON, Petitioner-Appellant, v. Robert BORG, Et Al., Respondents-Appellees

74 F.3d 1571, 96 Daily Journal DAR 699, 96 Cal. Daily Op. Serv. 441, 1996 U.S. App. LEXIS 749, 1996 WL 26782

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 22, 1996
• Docket: 94-15846
• Status: Published

Opinions

Opinion by Judge KLEINFELD.

KLEINFELD, Circuit Judge:

This is a state habeas corpus case. We apply the newly established standard for prejudice in state habeas constitutional error cases, and determine that on the facts of this ease, there was no prejudice requiring that the writ be issued.

I. Facts.

Two groups confronted each other behind a fried chicken restaurant. Thompson stabbed three men from the other group, killing one of them. He also held a knife as he spoke with a woman in a car and slashed one of her tires.

He was charged with first degree murder for the killing, attempted murder for the two stabbings, and assault with a deadly weapon for threatening the woman in the car. By the time trial started, the prosecution had reduced the charges to first degree murder for the dead man, and three counts of assault with a deadly weapon. The prosecution tried to prove that he set out to kill the man who died, because Thompson thought the victim was a “snitch.”

Thompson testified. He did not deny the stabbings. His story was that it was a fight, and he stabbed the three men in self defense. He claimed that he thought the man he killed had a knife in his hand, because his own fist was cut when he hit the dead man’s fist. The other men, he claimed, were reaching behind their waists as if to get weapons. No weapons were found on the dead man or the two who were stabbed. A knife was found in the woman’s car, in which the four victims had travelled to the fight.

The jury rejected the prosecution theory of the case, and convicted Thompson only of second degree murder for the killing, not first degree. It convicted him of assault with a deadly weapon for each of the nonfatal stabbings, but acquitted him of assault with a deadly weapon on the woman in the car.

The facts relevant to the issues on appeal relate to voir dire and closing argument. During voir dire, a venireman said he had read that Thompson had previously pleaded guilty to something and then withdrawn his plea. During trial, a witness “turned around” on the prosecution. The witness had apparently told the police that Thompson had set out to “get” the dead man because he was a “snitch.” The witness testified at trial that Thompson was just “backing up” the witness and got involved in the fight without intending to. In closing argument, the defense suggested that the’ police and prosecutor had pressured the witness to lie in his “snitch” statement. The prosecutor responded in her rebuttal argument by implying that she personally believed that Thompson was guilty of first degree murder, based on her own experience and the capabilities of the police. She suggested that the defense investigator had coached the witness to recant his “snitch” story, and had rehearsed him to testify favorably to Thompson.

Thompson appealed and exhausted his remedies in the state courts. He then petitioned for a writ of habeas corpus in federal district court. The district court denied his petition, and Thompson now appeals that denial.

II. Analysis.

We assume without deciding that the venireman’s disclosure fell within the category of juror misconduct, but decide that in the circumstances of this ease, the error was harmless. We also hold that the prosecutorial misconduct was not prejudicial.

A. Standard of Review.

We review de novo the district court’s denial of habeas relief. Dickson v. Sullivan, 849 F.2d 403, 405 (9th Cir.1988). For habeas review, Congress has directed that state court determinations of historical fact “shall be presumed to be correct.” 28 U.S.C. § 2254(d). However, “[t]he application of a legal standard to historical facts does not constitute a factual finding entitled to a presumption of correctness under section 2254(d).” Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir.1987). Therefore we review the state court’s determination of lack of prejudice de novo. See Dickson, 849 F.2d at 405; Marino, 812 F.2d at 504.

B. Juror Misconduct.

Thompson had pleaded guilty to second degree murder, but had been allowed to withdraw his plea and go to trial. The voir dire took quite a long time. During the first two days of voir dire, the court had given admonitions not to read stories about the ease in the newspaper. The third day, a new venireman was brought in, who had not heard the admonitions. During the portion of voir dire by the court, the judge elicited that the venireman had read a newspaper story about the case the previous night. Defense counsel took the matter up during his own questioning, in open court with the other jurors present. The juror refrained from saying what the newspaper story had said the first two times he was asked. The third time he was asked whether he had read something about the case, the second time defense counsel had asked him, the venireman expanded on his previous two answers and said what he had read, that Thompson had pleaded guilty to something:

[Judge]: Do you know anything about this case?

A. Read about it in the paper, last night’s paper.

Mr. Perisho [defendant’s lawyer]: Mr. Fowler, you mentioned that you only recall this case from what you read in the papers. Did you say last night?

A. Yes.

Q. Did you read something about this case?

A. Yes, the jury selection pending on this case, pleaded guilty at one time and changed it.

Thompson argues that this disclosure by the venireman amounted to prejudicial pretrial publicity. It does not. Prejudicial pretrial publicity may make it impossible to seat an impartial jury in a community, if the community has been saturated with prejudicial and inflammatory media publicity about the crime. See Jeffries v. Blodgett, 5 F.3d 1180, 1189 (9th Cir.1993); Harris v. Pulley, 885 F.2d 1354 (9th Cir.1988). A comment by a venireman during jury selection does not amount to pretrial publicity in this sense.

Thompson argued before the magistrate, and our dissenting colleague urges, that the venireman’s remark amounted to juror misconduct. Juror misconduct typically occurs when a member of the jury has introduced into its deliberations matter which was not in evidence or in the instructions. Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir.1987). Thompson does not claim that any juror did anything wrong. We have used the sobriquet “jury misconduct” where no juror introduced the extraneous material, but a clerk inadvertently sent the police report and search warrant affidavit into the jury room. Hughes v. Borg, 898 F.2d 695 (9th Cir.1990).

The constitutionally protected interest at stake is in having the jury decide the case based on evidence subject to confrontation, cross examination, and the assistance of counsel. Dickson v. Sullivan, 849 F.2d 403 (9th Cir.1988). This interest requires inquiry for prejudice even where the extrinsic evidence comes from a source other than a juror, as when a deputy escorting the panel tells them that the defendant has “done something like this before.” Id.

We have found no cases of reversal because of “jury misconduct” or extraneous information, where the defense itself elicited the extraneous information in open court. If reversal on this ground were permitted, defense counsel could plant error in the record of any trial. The reasons for vacating convictions where the jury obtained extraneous information are protection of the right to confrontation, cross examination and counsel. These reasons do not apply where the information is elicited during voir dire, because defendant had counsel who cross examined the venireman in defendant’s presence. We assume, for purposes of discussion of our dissenting colleague’s views, but do not decide, that the venireman’s remark, “pleaded guilty at one time and changed it,” amounted to introduction of extraneous material on which reversal could be founded. We further assume without deciding that failure to grant a mistrial after the venireman’s remark was constitutional error.

The assumed error would support a writ only if prejudicial, because the error is “trial error,” not “structural error.” “Trial error ‘occur[s] during the presentation of the case to the jury’ and is amenable to harmless-error analysis because it ‘may ... be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial].’ ” Brecht v. Abrahamson, 507 U.S. 619, 629, 113 S.Ct. 1710, 1717, 123 L.Ed.2d 353 (1993) (quoting Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S.Ct. 1246, 1264, 113 L.Ed.2d 302 (1991)). Deprivation of the right to counsel or a biased judge are “structural defects” because they infect the entire trial process. Fulminante, 499 U.S. at 306-10, 111 S.Ct. at 1262-65. “[M]ost constitutional errors can be harmless.” Id. at 306, 111 S.Ct. at 1263. The Supreme Court classifies admission of an involuntary confession as “trial error.” Id. at 306-11, 111 S.Ct. at 1262-66. In practical terms, admission of evidence of a withdrawn plea resembles admission of an involuntary confession, not a biased judge or total deprivation of the right to counsel. The purported error in the case at bar is in the exercise of discretion by a trial judge about how to cure prejudice to the defendant from information defense counsel elicited from a potential alternate juror. If the trial judge adequately cured the defect so that no actual prejudice resulted, the error is harmless and the defendant is not entitled to the writ.

The test for prejudice has recently been clarified by the Supreme Court. The standard for determining whether to grant the writ in collateral review of a state court conviction is not whether the error was harmless beyond a reasonable doubt, as in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 706 (1967), but rather, whether the constitutional error “ ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht, 507 U.S. at 623, 113 S.Ct. at 1713, quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946); Jeffries v. Blodgett, 5 F.3d 1180, 1190 (9th Cir.1993).¹

Burden of proof was clarified last term. The Court has “deliberately phrase[d] the issue ... in terms of a judge’s grave doubt, instead of in terms of ‘burden of proof.’” O’Neal v. McAninch, — U.S. -, -, 115 S.Ct. 992, 994-95, 130 L.Ed.2d 947 (1995). The reviewing judge should “ask directly, ‘Do I, the judge, think that the error substantially influenced the jury’s decision?’ ” Id. at -, 115 S.Ct. at 995. Only if the judge thinks the error substantially affected the jury’s decision, or the record is so evenly balanced that the judge is in “grave doubt,” should habeas relief should be granted. Hegler v. Borg, 50 F.3d 1472, 1478 (9th Cir.1995); United States v. Moorehead, 57 F.3d 875, 879 (9th Cir.1995).

The nature of the test for prejudice precludes categorical reversal, or affirmance, for introduction of extraneous information. In this case, we have reviewed the record de novo, and we do not think the venireman’s remark substantially affected the jury’s decision. Nor are we in the state of equipoise which would invoke the “grave doubt” rule.

The trial judge consulted extensively with counsel about how to cure the problem defense counsel had created. He decided on an admonition, carefully worded to prevent jurors from drawing inferences from what the juror had said, without reminding them of exactly what he had said:

Now ladies and gentlemen of the jury, just before we took the recess, while questioning was being done of Mr. Fowler, the proposed alternate juror, he was asked whether he had heard about this case or been told about this case and he mentioned that he had seen something in the Stockton Record. Again I want to caution all of you that what that Stockton Record or any newspaper says or any other news media or television says is not in evidence in this case at all. You are not to consider it; you are not to discuss it; you are not to even think about it. You are not to read the newspapers concerning this incident or any other similar incident as long as this trial is in existence.

This admonition adequately told those jurors who understood from the veniremen that a newspaper reported Thompson had pleaded to something to disregard it and decide the case on the evidence. It also avoided educating those who had not heard or understood the alternate’s remark about the newspaper report.

The California Court of Appeals, the highest state court to review this case on the merits, decided that any inference of prejudice was rebutted by five things: (1) the juror’s own phrasing; (2) the judge’s admonition; (3) defense counsel’s failure to object to the phrasing of the admonition; (4) defense counsel’s failure to request individual voir dire of the jurors; and (5) defendant’s trial strategy of admitting the offenses but claiming self defense.

Here, a prospective alternate juror, later excused, stated he had read about defendant’s guilty plea in the newspaper. Assuming, arguendo, such a remark falls within the ambit of juror misconduct, raising a presumption of prejudice, .we hold such presumption rebutted by the record. The remark was vague and awkwardly phrased, and the jury, with defense counsel’s apparent concurrence, was generally admonished not to consider it. Defense counsel did not make any request for voir dire of the jurors. Moreover, as we have said, defendant’s strategy at trial was to admit the offenses but claim self-defense. On this record, we hold no prejudice actually resulted. (People v. Boyd, supra, 95 Cal.App.3d [577] at pp. 586-589 [157 Cal.Rptr. 293 (1979) ].)

People v. Thompson, 3 Criminal 12056, at 13 (Cal.Ct.App. Sept. 26, 1983). We agree.

The venireman’s remark that he read in the newspaper Thompson had “pleaded guilty at one time and changed it,” does not say to what charge Thompson had pleaded guilty. The jury was told not to use this remark against Thompson. Although in some cases it would have been hard for the jury to decide the case on any basis other than its knowledge about the withdrawn plea, in this case, there was no dispute about whether Thompson had stabbed the victims, just whether he had justification or mitigation. A withdrawn plea to an unknown charge did not give the jury answers to the questions upon which the case would probably be resolved. We can be confident that the jury did not ignore the evidence and just convict Thompson because it had learned of his prior plea, because the jury rejected the prosecution case for first degree murder, asked the judge serious questions about self defense, and deliberated for two full days and parts of two more before reaching its second degree murder verdict. The case is analogous to where a witness says something that was not supposed to be before the jury, the judge admonishes the jury to disregard it, and there is no reason to doubt that the jury obeyed the admonition.

C. Prosecutorial Misconduct.

We assume without deciding that the prosecutor’s remarks in her rebuttal argument amounted to misconduct. Even if a prosecutor’s argument is egregiously improper, a federal court cannot issue a writ of habeas corpus to state authorities unless “the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). The standard of review is the “‘narrow one of due process, and not the broad exercise of supervisory power.’ ” Id. “Improper argument does not, per se, violate a defendant’s constitutional rights.” Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir.1993); see Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir.1995).

We are not reaching the question, for which Brecht, 507 U.S. 619, 113 S.Ct. 1710, and O’Neal, — U.S. -, 115 S.Ct. 992, would supply the standard of review, of whether the constitutional error if any was harmless. See Darden, 477 U.S. at 183 n. 15, 106 S.Ct. at 2472 n. 15 (“We do not decide the claim of prosecutorial misconduct on the ground that it was harmless error.... it was not constitutional error.”) We assume without deciding that the prosecutor’s argument was improper, and decide that the impropriety if any was not constitutional error. Only if the argument were constitutional error would we have to decide whether the constitutional error was harmless. A federal court does not have supervisory power, as a state appellate court might, to correct error not of constitutional dimension, and cannot issue a writ of habeas corpus where the improper conduct does not deprive the defendant of his constitutional right to due process of law. See Darden, 477 U.S. at 168, 106 S.Ct. at 2465.

The prosecutor’s argument in the case at bar did not so “ ‘infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden, 477 U.S. at 181, 106 S.Ct. at 2471. We can be quite sure the jury’s immune system withstood the “infection,” because the prosecutor’s argument failed to persuade. The jury rejected her first degree murder argument. The jury’s rejection of the prosecutor’s argument shows that it knew better than to decide the case based on the prosecutor’s confidence in her first degree murder theory, and decided it instead based on its own view of the evidence.

AFFIRMED.

1 . Our dissenting colleague takes the position that we have ignored Dickson v. Sullivan, 849 F.2d 403 (9th Cir.1988), Jeffries v. Blodgett, 5 F.3d 1180 (9th Cir.1993), and Lawson v. Borg, 60 F.3d 608 (9th Cir.1995). Of course we have not. Our colleague would push error which he concedes was not ‘‘structural’' into a category of prejudice so strongly presumed to exist as to be indistinguishable as a practical matter from structural error.

Dickson, which came down before Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), was not like this case. A deputy escorting the jury told the jurors out of court that the defendant had "done something like this before,” the lawyers and judge apparently did not discover this until after the trial was over, and the judge's boilerplate instructions, to decide the case on the evidence and disregard defendant’s prior convictions except as they might bear on credibility, did not cure the likely prejudice.

Jeffries, a death penalty case, also involved information conveyed outside the courtroom that the defendant was a convicted criminal, without the lawyers or judge knowing about the extraneous information and having an opportunity to try to cure unfair prejudice. We concluded that if the out-of-court communication to the jurors had been made, in the particular case it would have had a substantial and injurious effect. We particularly noted, in Jeffries, that under Brecht "petitioners now face a greater burden” than they had when we decided Dickson and Bayramoglu v. Estelle, 806 F.2d 880 (9th Cir.1986), and "must now show that the alleged error ‘had substantial and injurious effect or influence in determining the jury’s verdict.' " Jeffries, 5 F.3d at 1190.

In Lawson v. Borg, 60 F.3d 608 (9th Cir.1995), some jurors had told others that the defendant was known around town as a violent man. As in Dickson and Jeffries, the communication was outside the courtroom, unknown to the lawyers and judge, so, unlike the venireman's remark in the case at bar, the "exposure to facts not in evidence deprives a defendant of the rights to confrontation, cross-examination, and assistance of counsel.” Lawson, 60 F.3d at 612. We expressly applied the Brecht standard, noting that a habeas petitioner “is entitled to habeas relief only if it can be established that the constitutional error had 'substantial and injurious effect or influence in determining the jury's verdict.' " Id.

We have performed precisely the analysis which Brecht and our applications of Brecht in Jeffries and Lawson require. Our dissenting colleague would pigeonhole the error in this case into a general category, say that errors in that category are generally too prejudicial to be cured, and conclude that the error in the case at bar was prejudicial. That kind of pigeonholing and syllogistic inference from generalities is contrary to the particularized case-by-case analysis of prejudice required by Brecht.