Opinion
Central District of California, Los Angeles, D.C. No. CV-89-00327-SVW
Before: HUG, T.G. NELSON, and GOULD, Circuit Judges.ORDER AMENDING OPINION
After considering the petition for rehearing and the response, the Opinion filed at 306 F.3d 665 (2002), is amended to replace all of the text in sub-section "B. Tainted Jury (Claim Y)" on pages 722-25, with the following:
B. Tainted Jury. (Claim Y)
Williams contends that he was deprived of his Sixth Amendment right to a fair trial and an impartial jury at the penalty phase of the trial, because of the possibility that the jury may have considered extraneous evidence at that phase of the trial. The jury rendered its verdict at the conclusion of the guilt phase on a Friday. The penalty phase of the trial began the following Tuesday. On the day the jury began its penalty phase deliberations an alternate juror told the bailiff that some of the jurors believed that Williams had threatened the jury. The bailiff reported this to the judge. The judge then questioned the alternate juror in open court outside the presence of the jury. At first the judge thought that the possible threat had been made to her on Tuesday. Then it was cleared up that she was referring to something that occurred on Friday. The transcript of the questioning after that of the alternate juror, Mrs. Bela, is as follows:
THE COURT: What comment is this that you're referring to? MRS. BELA: It was after the verdict was read. THE COURT: What did you hear, if anything? MRS. BELA: Well, the jurors sitting in the center said that the defendant looked at us and said that he was going to get all of us. THE COURT: Did you hear him say that? MRS. BELA: No, I didn't. THE COURT: All right.
You may step down. Thank you.
ER at 1954.
Williams's co-counsel, Mr. Ehrlich, stated his belief that the comment referred to must have been one addressed to him and not the jury. Mr. Ehrlich stated:
Mr. Williams, turned to me and addressed a comment to me as his counsel. There is no - I don't want to put myself in the position of a witness - but I think the representation should be clear that it was something to the effect, "Are those the sons of bitches who are going to decide what happens to me?" There was no threat. Nothing directed to any juror. It was a comment directed strictly to counsel.
ER 1956. As to what should be done at that point Mr. Ehrlich stated "It should be considered by the court as to what remedy if anything is appropriate. . . . [T]he court perhaps should consider inquiring as to the regular panel, perhaps declaring a mistrial as to the penalty phase." After discussing the matter with the prosecution and defense attorneys the court decided to bring the foreman of the jury into the courtroom for questioning. The transcript of that questioning is as follows:
THE COURT: Are you the foreman during the penalty phase of this case? MR. BRAMHALL: I am. THE COURT: It has come to the court's attentions that there is a possibility that some remark might have been made by the defendant that was heard by the jury on the date that the jury returned its verdict at the guilty phase.
Do you have any information concerning that?MR. BRAMHALL: I do. THE COURT: What is that? MR. BRAMHALL: He did utter a statement as we were concluding. THE COURT: What was the statement? MR. BRAMHALL: "I'm going to get each and every one of you mother fuckers." THE COURT: Did you personally hear him make that statement? MR. BRAMHALL: I did not.
I saw him mouthing it; but I did not hear it.THE COURT: In other words, were you able to make out the words? MR. BRAMHALL: I was not. One of the other jurors was. THE COURT: All right. Did that play any part in the deliberations of this case concerning the penalty? MR. BRAMHALL: It did not. THE COURT: Was there any discussion of that comment at any time during the penalty phase of this trial? MR. BRAMHALL: No. Not until after the verdict had been reached. THE COURT: You've now reached a verdict? MR. BRAMHALL: We have. THE COURT: All right.
Thank you. You may go back into the jury room.
ER at 1959-60.
It is apparent that the perceived threat to the jury was not the Williams statement to counsel, but rather one mouthed directly to the jury. This corresponds to the comment described by Foreman Bramhall. It does not correspond to the comment described by Williams's counsel. The transcript reveals that Williams's counsel realized this. After the penalty verdict was rendered he asked:
MR. EHRLICH: Your Honor, before you let the jury go, I wonder, Your Honor - I think the defense would request in this instance as to the comment that Mr. Bramhall recited, that perhaps the court should make inquiry of each of the twelve regular jurors individually out of the presence of the others and ask each juror specifically whether the comment was directed to him. . . . This isn't a comment that apparently the court reporter got. This is supposedly a mouthed threat.
The reporter had picked up the words "sons of bitches" from the comment Williams made to his counsel. There is no indication the jury heard those words.
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ER at 1964. Williams's counsel did not move for a mistrial, but he did request that each of the regular jurors be questioned. The court declined to do so stating, "The foreman said the matter was not discussed until after the verdict was rendered. I am willing to accept his word for it. Further, on the fact that if anything occurred, it was the defendant personally that did it." The court had earlier expressed that misconduct of the defendant in the courtroom during official courtroom procedures and perceived by the jury was entirely different from activity or conversations that occurred outside the courtroom and were brought into jury deliberations.
The transcript of the trial makes it clear that it was the perceived direct threat to the jury that was at issue, not any statement by Williams to his counsel as earlier thought by counsel Ehrlich. Some of the jurors observed a direct threat to the jurors mouthed by Williams. This was misconduct by Williams in the courtroom during regular proceedings. It was not extraneous evidence outside the courtroom improperly brought into the jury room.
"The Sixth Amendment right to a jury trial 'guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors.'" United States v. Sarkisian, 197 F.3d 966, 981 (9th Cir. 1999) (quoting Irvin v. Dowd, 366 U.S. 717, 722 (1961)) (internal quotations omitted). However, the constitutional right to an impartial jury is not absolute. The Sixth Amendment affords no relief when the defendant's own misconduct caused the alleged juror partiality and the trial judge employed reasonable means under the circumstances to preserve the trial's fairness. See United States v. Hernandez, 952 F.2d 1110, 1116-18 (9th Cir. 1991) (no relief when a juror observed the defendant making "a slit across his throat, a motion to the witness who was on the stand" and the court questioned the juror and admonished the entire jury to ignore any gestures or body language); United States v. Trevino-Rodriguez, 994 F.2d 533, 535 (8th Cir. 1993)(no relief when the defendant interrupted defense counsel's opening statement and the trial court called an immediate recess, excused the jury, and the trial judge gave a curative instruction when the jury returned); United States v. Chaussee, 536 F.2d 637, 639-41 (7th Cir. 1976) (no relief when the defendant attempted to escape from the courtroom in the jury's presence and the trial judge fully informed himself of what had occurred, assessed its impact on the jury, and promptly admonished the jury to disregard the defendant's misconduct), abrogated on other grounds by Lewis v. United States, 523 U.S. 155, 162 (1998); see also Illinois v. Allen, 397 U.S. 337, 346 (1970) (the defendant's Sixth Amendment right to be present in the courtroom at every stage of trial is not absolute and may be lost by the defendant's misconduct).
Our decision derives from practical concerns about the proper administration of criminal justice, which would suffer appreciably if defendants through their own misconduct could overturn the results of their trials. "[G]ranting [habeas corpus relief] on the basis of [the defendant's] own misconduct would subvert the judicial process and allow [the defendant] to benefit from his own wrongdoing. If such behavior on the part of the defendant were held to require [relief], 'it would provide an easy device for defendants to provoke [constitutional error] whenever they might choose to do so.'" United States v. Stewart, 256 F.3d 231, 242 (4th Cir. 2001) (quoting United States v. West, 877 F.2d 281, 289 (4th Cir. 1989)). Justice Brennan, in his concurring opinion in Allen, 397 U.S. at 349 (quoting Falk v. United States, 15 App.D.C. 446 (1899)), recognized this problem:
It does not seem . . . to be consonant with the dictates of common sense that an accused person . . . should be at liberty, whenever he pleased, . . . to break up a trial already commenced. The practical result of such a proposition, if allowed to be law, would be to prevent any trial whatever until the accused person himself should be pleased to permit it . . . This would be a travesty of justice which could not be tolerated. . . . Neither in criminal nor in civil cases will the law allow a person to take advantage of his own wrong.
Nonetheless, even when it is the defendant's own misconduct that jeopardizes the fairness of the trial, the trial court must use reasonable means tailored to the particular circumstances of the case to help ensure a fair trial. See Chaussee, 536 F.2d at 641.
In this case any curative instruction would have stated that any mouthed threat that any jurors observed should play no part in the jury's deliberations. The foreman had already stated that it was not discussed in the jury's deliberations. There would have been no purpose for such an instruction at that point.
It is clear that it was Williams's mouthed threat that created any possible problem in this regard, thus invoking the strong policy that a defendant should not profit from his own wrongdoing at trial. Furthermore, as concluded by the California Supreme Court, the trial judge's actions were reasonable to ensure that the jurors considered the case on the evidence presented, unaffected by any threat perceived from Williams's statement. The judge had earlier instructed the jurors that they must base their verdicts upon evidence, and "evidence is what [they] heard from the witness stand and exhibits that were introduced into evidence." Prior to receiving the jurors' verdicts the judge informed himself of what had occurred and determined that the jury had not discussed any perceived threat by Williams during the jurors' deliberations. In light of the strong policy against a defendant profiting from his own wrongdoing at trial and the trial judge's reasonable actions to ensure a fair trial, we conclude that Williams is not entitled to relief under the Sixth Amendment, and we affirm the district court's grant of summary judgment in the state's favor on this claim.