Opinion
No. C 03-083 SI (pr).
June 17, 2003.
JUDGMENT
The petition for writ of habeas corpus is denied on the merits.
IT IS SO ORDERED AND ADJUDGED.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
This matter is now before the court for consideration of the merits of Edward Roundtree's pro se petition for writ of habeas corpus concerning his conviction for grand theft. For the reasons discussed below, the petition will be denied.
BACKGROUND
A. Case History
Edward Roundtree was convicted in the Santa Clara County Superior Court of grand theft, see Cal. Penal Code §§ 484, 487, and was found to have suffered a prior conviction and six prior prison terms, see Cal. Penal Code §§ 667(b)-(I), 667.5(b), 1170.12. Roundtree was sentenced to 12 years in prison. The California Court of Appeal affirmed the judgment of conviction and the California Supreme Court denied his petition for writ of habeas corpus.
Roundtree filed this action in July 2003. His federal petition asserts two related claims for relief based on a read-back of testimony to the jurors in response to their request during deliberations. First, he claims that his rights to due process and a fair trial were denied because the read-back was misleading and did not include the information the jury actually requested. Second, he claims that his right to assistance of counsel was violated because the read-back was conducted without input from defense counsel.
B. The Crimes
The evidence of the crimes presented at trial was described at length in the California Court of Appeal's opinion. The evidence is summarized below.
On May 5, 1998, a car repair shop, Clutch Busters, received a call from a man who identified himself as "William Davis." The caller requested the services of Clutch Busters to tow his car and make the needed repairs. "Davis" gave a telephone number to the owner of Clutch Busters, George Roe, where he could be reached.
The next day, after Roe made $628.80 worth of repairs, "Davis" arrived at Clutch Busters to retrieve the car, a 1986 red Nissan Sentra with Texas license plates. Roe recognized "Davis'" voice as that of the man who had telephoned him the day before to have the car repaired. When "Davis" arrived at Clutch Busters to retrieve his Sentra, he asked to first test drive it. In exchange he left the keys to a blue Suzuki Samurai parked in front of the shop. "Davis" never returned with the Sentra. At trial, Roe identified Roundtree as the man who earlier identified himself as "Davis" and took the car from Roe's shop on a test-drive from which he never returned. When Roe called the phone number "Davis" gave over the phone, the person who answered said that no one by the name of "William Davis" lived there. Roe remembered seeing four pieces of mail in the Sentra's trunk addressed to a "Jack Roundtree" at 1226 Jervis in East Palo Alto.
A DMV printout showed Edward Silas Roundtree's address as 1226 Jervis in East Palo Alto. RT 84. Jack Roundtree, Edward's uncle, used to live at that address and Edward was raised and lived there a few years ago, according to Rozalind Blue. RT 83.
Roe called the police to report the crime on May 6. Officer McElvey arrived at Clutch Busters to make a report. Roe described the man who picked up the Sentra to Officer McElvey as 5' 10" — 6' tall and weighing between 160 and 180 pounds. Roe also said the man was wearing a baggy sweatsuit which precluded an accurate assessment of his physique.
The Suzuki Samurai "Davis" left at Clutch Busters was owned by Roundtree's cousin, Roziland Blue. Much of the case revolved around whether Blue changed her description of the man who stole her car.
When Blue arrived at the auto repair shop to retrieve her Samurai, Officer McElvey talked to her to find out who had taken her Samurai. RT 89. According to McElvey's report, Blue told him that her Samurai had been taken by Edward. Also according to McElvey's report, Blue's description of the thief was the same as Roe's description on May 6, i.e., that the thief was 5' 10" — 6" tall and weighed 160-180 pounds.
Officer McElvey was on disability leave during the trial and did not testify. Officer Smith testified about the descriptions by both Blue and Roe of the man who stole the car, which were written in Officer McElvey's report. Officer Smith testified that McElvey's report showed that the descriptions by Roe and Blue matched. Officer Smith also verified that he (Smith) specifically asked Blue if the man who stole her car was named "Edward" and not "Eddie." According to Smith's testimony, Blue was positive it was "Edward." RT 140. Officer Smith testified that he had not heard anything about an "Eddie" until the preliminary hearing. RT 148.
At trial, Blue testified that her car was stolen by "Eddie Roundtree," a different cousin than "Edward Roundtree." During her testimony, she described the man who took her car as 6' 2" tall, thin and bald. RT 98-99. Blue also testified at trial that she had told McElvey that Eddie had taken her car and had told him that Eddie was 6' 2" and very thin and had no hair. RT 115, 116. She denied that she had ever talked to Officer Smith. RT 126. Blue testified at trial that Eddie drove a red Nissan with out-of-state licence plates. "She denied or did not remember telling the police that [Edward] drove a red Nissan Sentra with Texas plates." Cal. Ct. App. Opinion, p. 3.
JURISDICTION AND VENUE
This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Santa Clara County, California, within this judicial district. 28 U.S.C. § 84, 2241(d).
EXHAUSTION
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c)). The parties do not dispute that state court remedies were exhausted for the claims asserted in Roundtree's petition.
STANDARD OF REVIEW
This court may entertain a petition for 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." 28 U.S.C. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts."Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[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 also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
DISCUSSION
A. The Read-Back
Shortly after the jury deliberations began at Roundtree's trial, the jury foreperson asked for the police reports written by Officers McElvey and Smith. The court explained that the reports were not in evidence. The jury then asked for "Detective Smith's testimony on the report given by Officer MacElvey on the description of who stole the Samury [sic] by Miss Blue." CT 154. Testimony was read to the jury, and the jurors stated the read-back did not satisfy their request and they specifically wanted Blue's first description to the officers of the man who took her car on May 5. At this point the defense counsel approached the bench and a sidebar discussion was held. After the sidebar, the court reporter was instructed to read the testimony in question. A portion of Officer Smith's testimony was read:
Q. Let met ask you this. Did you go over her statement to Officer McElvey with her?
A. I talked with her about what she reported that day.
Q. Okay. Did she give you any information in regards to whether or not this suspect, that he was six-two and thin and bald?
A. No.
RT 141; see RT 234. After the read-back, the jurors told the court this was the testimony they wanted to hear. The jury deliberated for another 15 minutes, then returned with a guilty verdict against Roundtree.
The reporter's transcript does not provide a clear statement of what occurred because it does not actually report the specific testimony read back to the jury. Based on defense counsel's recitation of what was read to the jury, see RT 236, one can find the actual testimony at RT 141.
Although there were two separate read-backs, Roundtree's claims concern only the second readback. There is no evidence of what testimony was first read back to the jury that the jury stated did not answer its inquiry. The sidebar discussion that is mentioned throughout this order took place after the first, but before the second read-back.
B. Whether the Read-Back was Misleading
Roundtree asserts that the testimony read back to the jurors was misleading because "[t]he question seems to indicate that Blue gave a different description to Smith, where in fact there was no testimony that Blue gave Smith any description of the suspect." Petition, p. 17. Cf. RT 236 (defense counsel argues that the read-back testimony is "misleading in that it makes it sound as though she was being questioned about what she had said to McElvey, not whether she, Roz Blue, had given a description in July to Detective Smith.")
The California Court of Appeals rejected Roundtree's claims concerning the read-back. "In light of the trial court's inquiry whether the rereading satisfied the jury at a time when the jury had not completed deliberations and if it wanted further clarification, it would have been useful, and in light of the fact that the testimony reread was clearly admissible and met the jury's precise request, there was no error. [Citation] Defendant was not deprived of a fair trial by the court's respect for the limitation placed by the jury on what it wanted to hear reread." Cal. Ct. App. Opinion, p. 16. The California Court of Appeal cited the Riley v. Deeds and United States v. Hernandez cases mentioned below in framing the federal constitutional issue for its consideration.
The trial court has wide discretion when determining what portion of requested testimony is read back to the jury. Riley v. Deeds, 56 F.3d 1117, 1120 (9th Cir. 1995). When cross-examination is not read back along with the direct testimony, it will survive a harmless error review if the omission does not violate the petitioner's right to due process.Cf. id. at 1120. Error will not warrant habeas relief unless it has a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619,638 (1993). The court is responsible for determining what effect the error would have on the jury's decision. Id. at 642, (Stevens, J. concurring). The law is clear, though, that one part of the testimony cannot be emphasized over another and the court must take "necessary precautionary measures to avoid undue emphasis." United States v. Hernandez, 27 F.3d 1403, 1409 (9th Cir. 1995).
The first point to note is that the state courts referred to the testimony as "misleading." When this comment is analyzed in context, it is not particularly helpful to Roundtree's case. The state courts apparently meant that the question and answer sequence created an ambiguity. That is, the prosecutor asked Smith whether he went over Blue's statement to McElvey when he talked to Blue, and then the next question was not about Blue's statement to McElvey but instead was whether Blue had made a particular statement to Smith. The trial court's comment that the testimony was "misleading" and should have been clarified on cross-examination appears to this court to mean that the cross-examiner should have cross-examined to emphasize that Blue had not told Smith or McElvey that the suspect was 6' 2" tall, thin, and balding. Such cross-examination would dispel the idea that Blue changed her description between May and July 1998 — May being the date of the description to McElvey and July being the date of the description to Smith — but would really not have aided the defense because she was testifying at trial that the man who took the Samurai was 6' 2" tall.
Roundtree argues that the allegedly misleading testimony could have been aided by reading back some of Smith's testimony on cross-examination. See Petition, p. 22. Specifically, he urges that Smith testified on cross-examination that Blue's description to McElvey on May 6 of the man who stole her car was very similar to the description given by Roe to the police on May 6. See id.; RT 155. Failing to include this cross-examination material was harmless error, if any error at all. Smith's testimony on cross-examination was not contradictory to the direct testimony read back to the jury. The portion of Officer Smith's testimony read back states that Blue did not give Officer Smith any information about the suspect confirming that he was 6' 2" tall, thin and bald. On cross-examination, Officer Smith stated that Blue described the man who stole her car in the same way that Roe had described the man who left the Samurai when picking up the Nissan. Smith noted that Roe had initially described the suspect as 5' 10" — 6' tall and 160-180 pounds. RT 152. Smith's cross examination did not contradict the portion of his testimony that was read back to the jury. Had Smith's cross-examination testimony been read, it would have emphasized that Blue gave a different description to McElvey than the description she was urging at trial — and that would have been harmful rather than helpful to Roundtree's defense.
Even if one assumed that the failure to include the cross-examination testimony amounted to error, any error was harmless in that it did not have a substantial and injurious effect on the jury's verdict. The result would have been the same even if additional or different parts had been read back. Because the jury asked for a read-back of part of Smith's testimony, Smith's testimony was the universe from which the read-back could come; i.e., it would not have been proper to read back another witness' testimony, or to give the jury an exhibit, or to reopen testimony to obtain some clearer testimony from Officer Smith. The weakness of Roundtree's argument is that Smith had never provided much testimony helpful to Roundtree about what McElvey's report showed that Blue told McElvey. Smith testified on cross-examination that McElvey's report showed that Blue's description on May 6 matched Roe's description on May 6: the thief was 5' 10" — 6' tall and 160-180 pounds. RT 155. Smith also testified that the report showed that Roe had told McElvey the man who took the car was 5' 10" — 6' tall, 160-180 pounds. RT 152. Roundtree suggests that having this additional testimony would have been helpful because Blue "consistently" described the person who took her car was about 6' 2" tall and had a thin physique. See Petition, p. 6. Frankly, these two different descriptions simply are not consistent, despite Roundtree's assertion to the contrary. The court disagrees with Roundtree's peculiar reasoning in which the 1-3" difference between the 5' 10" — 6' description and his actual height of 5' 9" was huge while the objectively greater 2-4" difference between 5' 10" — 6' description and Blue's later description of the thief as 6' 2" was inconsequential. See RT 133 (discussing police documents listing Roundtree as 5' 9" tall and weighing 200 pounds); Traverse, Exh. A at p. 2 (listing Roundtree as 5' 9" tall and 190 pounds). Having the additional material read-back — i.e., that both Roe and Blue initially described the thief as 5' 10" — 6' tall and 160-180 pounds — would not have made the jury more likely to believe that Blue had consistently described the person who took her car as very tall and thin. Another part of Smith's testimony that could have been read back to the jury to give it a complete picture of Smith's testimony on the subject was Smith's testimony on redirect examination that McElvey's report showed that the suspect was referred to as Edward (not Eddie) Roundtree and that the description was received from Blue — again, testimony that was harmful rather than helpful to Roundtree's defense. RT 163. Roundtree has not pointed to any other testimony by Smith that would have been responsive to the jury's question. Having this additional testimony would not have made a difference for the jury.
Roundtree suggests that the quick verdict following the read-back indicates prejudice. The jury's total deliberations were very short in this case, however, making the meaning of the quick verdict less clear. The jury deliberated no more than 35 minutes before it asked for a copy of the police reports. The court explained to the jury that the reports were not in evidence, and the jury recessed for lunch. The jury resumed deliberations at 1:30 p.m. and deliberated for two hours before returning to the courtroom for consideration of its request for a read-back of Officer Smith's testimony. After the testimony was read back to the jury, it deliberated further and returned with a verdict in 15 minutes. The total deliberations of less than three hours suggest this was not a close case, rather than that the jury struggled with Blue's conflicting descriptions of the man who stole her car.
Finally, the jurors indicated that the testimony read back to them provided the information they requested. The jury requested specific information and told the court that it was satisfied with the testimony read back to them.
There was no due process violation in the read-back. If the cross-examination materials should have been read back, failing to do so amounted to harmless error. The California Court of Appeal's rejection of Roundtree's due process and fair trial claims was not an unreasonable application of or contrary to clearly established federal law.
C. Right to Assistance of Counsel
Roundtree claims that he was denied his right to assistance of counsel because defense counsel was not allowed input before the testimony was read back to the jury. The California Court of Appeal rejected this claim as unsupported by the facts: "Defendant was not deprived of the assistance of counsel or of his right to due process. Counsel was allowed to state her views before the testimony was reread to the jury. Just because the trial court disagreed with counsel does not mean the trial court did not listen to and consider the merits of counsel's argument. There was no federal constitutional error." Cal. Ct. App. Opinion, p. 15.
A defendant has a Sixth Amendment right to have his counsel represent him at proceedings when jury messages are answered by the court. United States v. Barragan-Devis, 133 F.3d 1287,1289 (1998). Although the jury question might be clear, it makes "better sense to surround the interchange between jury and judge with formalities so that defendant and his counsel have an adequate opportunity to make their views known." United States v. Schor, 418 F.2d 26, 30 (2nd Cir. 1969) (judge's failure to answer juror note in open court was reversible error). If defendant's counsel has not been allowed to be heard when the court decides how to respond to a jury message, the error is subject to a harmless error analysis. See Barragan-Devis, 133 F.3d at 1289. The factors to be considered are the probable effect of the message actually sent back to the jury, the likelihood that the court would have sent a different message had it consulted with defense counsel before responding to the jury's inquiry, and whether any changes in the message that defense counsel might have obtained would have affected the verdict in any way. Id.
Like the state appellate court, this Court finds Roundtree's claim that his counsel was not allowed to give her input to be contradicted by the record. After the jury foreperson requested the initial testimony, which described the person who took the car from the shop, defense counsel asked for and was allowed a sidebar conference. RT 234. The verbal exchange that took place between court and counsel during the sidebar was not reported, but the fact that a sidebar was held was recorded. RT 234. Counsel was able to speak on the issue before the read-back in question occurred. The court reporter then read back the testimony described in Section A, above, and the jury indicated that was the desired testimony. After the jury left to resume deliberations, the court allowed defense counsel to object on the record. RT 237. Roundtree's right to assistance of counsel was not denied because his counsel was allowed to make her position known during the sidebar conference. The fact that the trial court did not agree with Roundtree's counsel does not mean that counsel was not allowed to speak. And the trial court did allow counsel to make her objection for the record after the jury left the courtroom to continue deliberating.
The state appellate court's determination that Roundtree's counsel was allowed to state her views to the court before the read-back was a reasonable determination of the facts in light of the evidence presented in the state court proceeding and will not be disturbed here. See 28 U.S.C. § 2254(d)(2). The state court's rejection of Roundtree's legal claim was not contrary to or an unreasonable application of clearly established federal law as determined by the U.S. Supreme Court. See 28 U.S.C. § 2254(d)(1).
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.