a consecutive five years in state prison on the prior conviction finding. Opp'n at 5.
On April 17, 1992, the California Court of Appeal, Fourth Appellate District, affirmed Petitioner's conviction. Opp'n at 5.
Petitioner filed a petition for review with the California Supreme Court on May 27, 1992, alleging denial of his federal constitutional right to a fair trial based on the jury's receipt of extraneous material. The California Supreme Court denied petition for review on July 8, 1992. Opp'n at 5-6.
B. Substantive Facts
The government presented the following evidence at Petitioner's trial. On September 19, 1989, Neil Becker heard noises coming from the house of his neighbor, Barbara Dresden. Upon investigation, he saw that the screen on one of Dresden's front windows was open at the bottom and that the window itself was open. When Becker looked inside Dresden's house, he could see that the bedroom was in disarray. Opp'n at 6.
Becker then went to the back of the building, where he saw an unfamiliar green station wagon parked in the back alley. There were two men in the car and two men standing by a back gate. Becker then telephoned the police department, giving them a description of the vehicle and its license plate number. When Becker returned, the two men by the back gate had disappeared. The station wagon then drove away. Opp'n at 6-7.
Becker noticed that the back door to Dresden's house was open and some of Dresden's belongings were near the back steps. He did not see anyone inside. Before the police arrived, the station wagon, with the two men still inside, returned and slowly cruised by the Dresden house. This occurred again after the police arrived, at which point an officer followed the vehicle and stopped it. Petitioner's sixteen-year-old brother, Joseph Borja, and another man were inside the vehicle. Becker identified them as the two men he had seen in the car when it was parked in the alley and when it had passed by the house the first time. Upon searching the vehicle, the officer found five $ 2 bills on the floorboard below where Joseph Borja had been sitting. Opp'n at 7-8.
Alerted by a telephone call, Dresden returned home. Dresden discovered most of her jewelry was missing, as well as her commemorative coin collection which included $ 2 bills. She also identified the items on the back steps as her own. Opp'n at 8.
Petitioner's thumb print was lifted from the outside of the glass of the open window at the front of Dresden's house. This window was covered by a screen that Dresden testified had been in place the entire time she had lived in the house. Opp'n at 8-9.
Petitioner did not testify at trial. Petitioner's girlfriend, however, testified on his behalf. As an explanation for the fingerprint, she stated that on the day of the burglary she and Petitioner were out looking for an apartment. While apartment hunting, she explained, Petitioner got out of the car and went up to the homes to look at them. The area in which Petitioner's girlfriend claims that they looked at houses is near the Dresden residence. Opp'n at 8-9, 17.
II. PETITIONER HAS A CONSTITUTIONAL RIGHT TO AN IMPARTIAL JURY
State defendants have a federal constitutional right to an impartial jury. This right requires that the jury consider only evidence that is properly presented in open court. Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986) (citing Turner v. Louisiana, 379 U.S. 466, 472-73, 13 L. Ed. 2d 424, 85 S. Ct. 546 (1966)). When the jury considers facts not entered into evidence, a defendant is effectively denied the rights of confrontation, cross-examination, and the assistance of counsel with regard to that extraneous evidence. Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir. 1980), cert. denied, 450 U.S. 1035, 68 L. Ed. 2d 231, 101 S. Ct. 1749 (1981).
A. Standard on Collateral Review
Until recently, the federal courts applied the same standard for determining reversible constitutional error in cases on direct review as they applied in cases on collateral review, or habeas corpus. That standard, based on the United States Supreme Court's holding in Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), was whether the error was "harmless beyond a reasonable doubt." In the context of jury misconduct, the test as applied is whether there is "a reasonable possibility that the extrinsic material could have affected the verdict." Dickson v. Sullivan, 849 F.2d 403, 405 (9th Cir. 1988) (holding that the test is applicable on a collateral review of state court judgments, as well as in federal cases on direct appeal). See also Hughes v. Borg, 898 F.2d 695, 700 (9th Cir. 1990); Gibson, 633 F.2d at 855.
In 1993, however, the United States Supreme Court distinguished collateral review from direct review in Brecht v. Abrahamson, U.S. ; 113 S. Ct. 1710 (1993). In Brecht, the Court declined to apply the Chapman harmless error standard to cases on collateral review. Instead, the Court held that the standard for determining whether habeas corpus relief must be granted is whether the trial error had "substantial and injurious effect or influence in determining the jury's verdict." Id. at 1718 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946)).
In adopting the lower standard for collateral review, the Court reasoned that considerations of comity, federalism, and finality required a lesser standard once the conviction survives direct review within the state court system.
Thus, when a federal court considers a petitioner's writ for habeas corpus based on the fact that the trial jury considered extraneous material, the defendant is entitled to a new trial if the court finds that the trial error had "substantial and injurious effect or influence in determining the jury's verdict." Justice Stevens, in his Brecht concurrence, notes that under both Kotteakos and the statutory rule for reviewing trial court errors, the burden of proof continues to rest with the prosecution. Id. at 1723.
B. Receipt of Extraneous Material
Respondents contend that there was no trial error. They argue that, because the fingerprint cards were properly admitted, Petitioner's arrest history, on the reverse side, was also properly admitted.
No federal court has ever held that evidence is properly admitted simply because it is attached to properly admitted material. Such reasoning would ignore the very purpose of the rules of evidence. In the present case, it is not the physical objects themselves, i.e., the fingerprint cards, that are at issue. Rather, it is the information concerning Petitioner's arrest history on the back of the fingerprint cards that is extraneous and improper. Because Petitioner's arrest history was not formally introduced into evidence, information regarding that history is extraneous material. See Hughes, 898 F.2d at 700.
Upon learning of the possible receipt of extraneous material by the jury, the trial court held an evidentiary hearing to determine the precise nature of the information received by the jury. The trial court questioned each juror individually regarding whether the juror viewed the alleged extraneous material or heard remarks about the material. The record shows that nearly every juror was in some way exposed to the material. (R. at 272-324.) However, the trial court denied Petitioner's motion for a new trial, stating:
I'm not satisfied that this constitutes evidence received out of court within the meaning of [Penal Code section] 1181 subdivision 2. If it does, I think there's been no showing of prejudice to the defendant which would justify granting a new trial. The motion for new trial is denied.