United States District Court, Northern District of California
April 3, 2003
JOHN THOMAS, PETITIONER,
EDWARD ALAMEIDA, JR. ET AL., RESPONDENTS
The opinion of the court was delivered by: Charles R. Breyer, United States District Judge.
MEMORANDUM AND ORDER
Now before the Court is petitioner John Thomas's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Upon receipt of Mr. Thomas's petition, the Court issued an order to show cause why a writ of habeas corpus should not be granted. Respondent filed an answer to the order to show cause, and petitioner filed a timely traverse.
In 1996, John Thomas was convicted by a jury in California Superior Court of two counts of continuous sexual abuse of a child (Cal. Penal Code § 288.5), six counts of lewd or lascivious acts with a child under the age of fourteen (Cal. Penal Code § 288), and two counts of sodomy (Cal. Penal Code § 286). He was sentenced to 30 years in prison.
The conduct for which Mr. Thomas was convicted involved three minor victims, all of whom testified at trial. One of the minors, Marcus M., testified that, among other things, petitioner removed Marcus's pants and placed him on a 4-foot long seesaw-like board so that Marcus's anus was positioned directly over a hole in the board. Marcus testified that on two separate occasions, petitioner lay down on his back, penetrated Marcus through the board, and used a string to move the board up and down. This alleged conduct was the basis for counts 7 through 10 of the information, which charged petitioner with two counts of sodomy and two counts of lewd and lascivious acts committed by force.
As part of petitioner's defense to these charges, defense counsel argued to the jury that it was physically impossible for petitioner to have committed the acts described by Marcus. during cross-examination of Marcus, defense counsel challenged Marcus to draw a diagram of the board, and then counsel himself lay down beneath a table as instructed by the witness to simulate the position that petitioner allegedly assumed. See RT 482-86, 505-09. During closing arguments, counsel called Marcus's testimony "ludicrous" and "impossible physically," and suggested that the government should not prevail if its only evidence was Marcus's testimony regarding the acts that petitioner allegedly committed with the board. See RT 853-54. In addition, defense counsel argued that Marcus's testimony at trial was inconsistent with his statements to police and his testimony during the preliminary examination. See RT 857-60. Counsel also pointed out that Marcus did not level any allegations against petitioner until Marcus became a burglary suspect in two separate incidents, one of which was a burglary of the petitioner. Petitioner's theory of the case was that Marcus fabricated the allegations to escape blame for the burglary, and then persuaded two of his friends to fabricate similar allegations to bolster his claims. See Tr. 861-67, 876.
The prosecutor responded to petitioner's impossibility argument by referring the jury to the diagram that Marcus drew on the stand and the simulation that defense counsel conducted in court. She further suggested that Marcus's testimony was credible because victims like Marcus "don't forget, and . . . don't forget the way it hurts, and . . . don't forget the way it happened." RT 905. In addition, she characterized the suggestion that Marcus elicited false allegations from the government's other victim-witnesses as "completely unreasonable" "conspiracy theory." RT 900-01, 904.
At the conclusion of the nine-day trial, the jury returned verdicts of guilty on all counts.
After the verdict was entered and before petitioner was sentenced, petitioner moved for a new trial on the grounds of juror misconduct. Specifically, petitioner maintained that he was entitled to a new trial because the jurors had attempted to reconstruct the alleged incidents involving the seesaw board using parts of an easel they found in the jury room. At an evidentiary hearing on November 22, 1996, two jurors testified that some of the jurors had taken apart an easel and tried to demonstrate the acts of sodomy described by Marcus in an effort to ascertain whether they were physically possible. The jury foreperson testified that this reenactment satisfied at least one juror "that the acts as described by Marcus could have occurred." RT 6 (Nov. 22, 1996). She further testified that the jurors had voted on all of the counts that did not involve the seesaw board prior to conducting this experiment. RT 5 (Nov. 22, 1996). The second juror corroborated the foreperson's description of events.
Following the evidentiary hearing, the trial court granted petitioner's motion for a new trial with respect to counts seven through ten only. The court denied petitioner's motion for disclosure of juror information and sentenced petitioner to a term of forty-six years on counts one through six.
Petitioner appealed to the California Courts of Appeal. The Court of Appeal amended the judgment to reflect one conviction, rather than two, for continuous sexual abuse of a child. Although the case was remanded with instructions to reconsider petitioner's motion for juror information, the Court of Appeal ruled that the trial court did not abuse its discretion in failing to grant a new trial on counts one through six.
On remand, the trial court granted petitioner's motion for disclosure of juror information. Following a second evidentiary hearing on petitioner's motion for a new trial, the court denied the motion and sentenced petitioner to thirty years in prison. Petitioner again appealed to the Courts of Appeal. The Court of Appeal affirmed the trial court, finding that "[t]he record . . . supports the trial court's determination that the jury's demonstration affected only . . . counts 7 through 10." Pet's Ex. D, at 7. The California Supreme Court denied petitioner's review petition on April 18, 2001.
On April 16, 2002, petitioner filed this habeas petition on the grounds that the jury's experiment violated his constitutional right to due process. Petitioner maintains that the decision of the California Courts of Appeal affirming the trial court's denial of his new trial motion as to counts one through six was contrary to clearly established federal law. See Pet.'s Memo at 15.
STANDARD OF REVIEW
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a).
The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d). A state court decision is contrary to clearly established federal law if "the state court arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decide[d] a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The writ may also issue under the "unreasonable application" clause if the state court "identifie[d] the correct governing legal principle from [the] Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case." Id. at 413. The habeas court "may not issue the writ simply because th[e] court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.
Both the trial court and the Court of Appeal found that the easel experiment constituted juror misconduct, and the government does not dispute this finding. Indeed, "jurors have a duty to consider only the evidence presented to them in open court." Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986). Evidence that was not presented in court — including "out-of court experiments" — is extrinsic evidence that should not be considered by the jury in arriving at its decision. See United States v. Navarro-Garcia, 926 F.2d 818, 821 (9th Cir. 1991).
The only question before this Court, therefore, is whether the experiment had a "substantial and injurious effect or influence in determining the jury's verdict" with respect to counts one through six.*fn1 Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). Juror misconduct requires that a verdict be vacated when the misconduct "relates directly to a material aspect of the case" and when there is a "direct and rational connection between the extrinsic material and a prejudicial jury conclusion." Marino v. Vasquez, 812 F.2d 499, 506 (9th Cir. 1987) (citing United States v. Bagnariol, 665 F.2d 877, 885 (9th Cir. 1981)); see also Rodriguez v. Marshall, 125 F.3d 739, 744 (9th Cir. 1997), overruled on other grounds by Payton v. Woodford, 299 F.3d 815 (9th Cir. 2002). Extrinsic evidence may be directly and rationally connected to a prejudicial jury conclusion on certain counts but not others, such that consideration of such evidence by the jury need not require retrial of every count of conviction. See Marino, 812 F.2d at 507.
Petitioner contends that the requisite direct and rational connection exists for all counts because the experiment "was directed at Marcus M.'s credibility and because the issue of his credibility permeated all of the charges in the case." Pet's Memo at 24. In fact, three jurors testified that the purpose of the experiment was to evaluate the feasibility of the alleged acts involving the board. To the extent that the experiment implicated Marcus's credibility, therefore, it did so only with respect to his testimony concerning the board. The misconduct charged in counts one through six, however, did not involve the board; indeed, the misconduct charged in counts one through four did not involve Marcus. Although the state bears the "risk of doubt" when a court has "grave doubt" about the influence of misconduct on a jury's verdict, see Payton, 299 F.3d at 828 (citing O'Neal v. McAninch, 513 U.S. 432, 436-38 (1995)), habeas relief cannot be based on "mere speculation that the defendant was prejudiced." Calderon v. Coleman, 525 U.S. 141, 146 (1998). As such, the Court need not indulge petitioner's speculative theory that but for the experiment, a juror might have voted not guilty on count five or six because she doubted Marcus's credibility generally, or not guilty on count one, two, three, or four because she transferred her doubts about Marcus's credibility to one of the other two complaining witnesses.
In any event, petitioner's theory that the easel experiment infected jurors' consideration of counts one through six runs counter to the evidence in the record. The jurors who were called to testify stated that the jury had reached a verdict with respect to counts one through six prior to conducting the experiment. While a jury's verdict is not final "until deliberations are over [and] the result is announced in open court," United States v. Nelson, 692 F.2d 83, 84-85 (9th Cir. 1982) (citation omitted), courts may consider "whether the [extrinsic] material was introduced before a verdict was reached" in determining whether the material was prejudicial as to a particular count. See Sassounian, 230 F.3d at 1109 (citing Dickson, 849 F.2d at 406)). Since the jurors in this case had finished deliberating on counts one through six before the reenactment was attempted, the Court finds that the experiment did not have a substantial and injurious effect on the verdict with respect to those counts.
For the reasons stated above, the decision of the California Court of Appeal affirming the trial court's denial of petitioner's motion for a new trial on counts one through six was neither contrary to nor an unreasonable application of clearly established federal law. Accordingly, petitioner is not entitled to the writ he seeks. His petition is hereby DENIED.
IT IS SO ORDERED.