Rodriguez v. Marshall

• Decision Date: 09 September 1997
• Docket Number: No. 96-16268,96-16268
• Citation: 125 F.3d 739
• Parties: 97 Cal. Daily Op. Serv. 7235, 97 Daily Journal D.A.R. 11,713 Luis Valenzuela RODRIGUEZ, Petitioner-Appellant, v. Charles D. MARSHALL, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 739

125 F.3d 739

97 Cal. Daily Op. Serv. 7235, 97 Daily Journal

D.A.R. 11,713

Luis Valenzuela RODRIGUEZ, Petitioner-Appellant, v. Charles D. MARSHALL, Respondent-Appellee.

No. 96-16268.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 11, 1997.

Submission Withdrawn June 16, 1997.

Resubmitted Aug. 14, 1997.

Decided Sept. 9, 1997.

Dennis P. Riordan, Riordan & Rosenthal, San Francisco, CA, for petitioner-appellant.

Ronald S. Matthias, Deputy Attorney General, San Francisco, CA, for respondent-appellee.

Appeal from the United States District Court for the Northern District of California; Laughlin E. Waters, District Judge, Presiding. ^* D.C. No. CV-94-01718-MMC.

Before: JOHN T. NOONAN, Jr. and O'SCANNLAIN, Circuit Judges, RHOADES, ^** District Judge.

O'SCANNLAIN, Circuit Judge:

We must determine whether alleged judicial coercion or juror misconduct warrants habeas relief for a convicted double-murderer.

I

Officers William H. Freeman and Roy Paul Blecher were murdered on December 22, 1978 on the I-80 Freeway in West Sacramento, California at approximately 3:40 a.m. At trial, the prosecution presented evidence that Rodriguez and his girlfriend Margaret Klaes had engaged in a cross-state crime-spree involving armed robberies, kidnapping, and auto-thefts leading up to the murders. Acquaintances testified that Rodriguez had said he would kill any officers who interfered with him. Rodriguez's drivers' license was found next to the officers' patrol car and footprints at the scene matched his shoes. Klaes testified that she was in the stolen car Rodriguez was driving when they were stopped for speeding, and that Rodriguez had murdered the two officers who pulled them over. Another acquaintance testified that Rodriguez had boasted of "downing" two officers.

In his defense, Rodriguez suggested that Klaes, with her drug suppliers, had been involved in the murder, and that she had framed Rodriguez. He testified that on the night of the murder, he and Klaes had been drinking and taking cocaine at the home of Jeri Engel in Crockett, California. He claimed that they left Crockett at 1:30, arriving in West Sacramento at around 2:30, where he went directly to sleep in a motel room. He therefore could not have been at the murder scene an hour later. Rodriguez further testified that Klaes drove off in the Camaro to buy more cocaine, and that she acted in a suspicious manner the following morning when she returned to the motel. He claimed that Klaes carried his drivers' license and gun in her purse, giving her the opportunity to plant incriminating evidence. The defense sought to undermine further Klaes's credibility by pointing to the fact that she was testifying in exchange for a plea-bargained lesser crime, with a maximum sentence of three years, and that she was jealous because she had read a letter written by Rodriguez to another woman.

Both the defense and the prosecution presented evidence relating to the timing of events on the night of the murder. First, it was undisputed that the distance between Crockett and West Sacramento was about 57 miles, and that the travel time was approximately one hour. However, the time of departure from Crockett was sharply disputed. The State presented evidence that Rodriguez and Klaes left Crockett at around 2:30 a.m., placing them at the murder scene about an hour later. Rodriguez presented evidence suggesting that the couple left at 1:30 a.m. One witness, Wanda Hawthorne, testified that she was driving from San Francisco to Sacramento and noticed a brown Camaro around 2:00 a.m. which followed her car between Vacaville and Davis, California. ¹ Rodriguez claims that Hawthorne's testimony supports his theory that the couple left Crockett around 1:30 a.m.

The prosecution and defense also presented testimony from several drivers passing near the scene of the murder. These witnesses provided widely conflicting statements about the color and model of the car that was stopped next to the officer's patrol car. ²

The evidentiary phase of the trial spanned three months and included more than 100 witnesses and 200 exhibits. The jury began deliberations on January 22, 1981. On the sixth day of deliberations, one juror fell ill and an alternate was chosen with deliberations beginning anew. The newly comprised jury met for a total of 15 court days. During that time, the jury sent five separate notes on four different days indicating that they were deadlocked. They also made many requests for testimony to be read back and received three supplemental instructions. Judge Karesh, the presiding judge, refused five defense motions for a mistrial, commented on the evidence which the jury had requested while giving a supplemental instruction, and, after the jury repeatedly declared that it was deadlocked, learned that the jury's split had remained at 11-1 for each of the five ballots taken. Finally, on February 25, the jury returned a unanimous verdict finding Rodriguez guilty of the double murder. The jury recommended the death penalty, which the judge imposed. A protracted appeals process in the State court system followed. The California Supreme Court affirmed Rodriguez's conviction on direct appeal in 1986, but remanded to the trial court for the judge to make an independent ruling on an automatic application for modification of the death sentence. People v. Rodriguez, 42 Cal.3d 730, 230 Cal.Rptr. 667, 709, 726 P.2d 113, 155 (1986). Among its many other rulings, the California Supreme Court rejected Rodriguez's claim that the verdict was the product of judicial coercion. Id. 230 Cal.Rptr. at 696, 726 P.2d at 142.

On remand, Judge Karesh went beyond the remand instructions and considered a habeas petition requesting a new trial on the grounds of juror misconduct. The defense, six years after the conviction, contacted the jurors and learned that one member of the jury had told the others about his calculations of the distance and driving time between Crockett and the scene of the murders.

In an affidavit, juror Shelby Martin admitted that he had been visiting friends in Crockett at some point during the trial and had driven past a bar Rodriguez visited on the night of the murder. He looked at his odometer and then drove to the freeway. When he exited the freeway at his destination, he saw a sign indicating the distance to Sacramento. He figured the time it would take to drive to the scene of the murder, and concluded that Rodriguez could have been at the scene at the time the murders occurred. ³ He shared his distance and time calculations with other jurors when deliberations were centered on the time issue. He also related to the other jurors that during his drive he had been unable to recall with accuracy the makes and models of cars parked by the side of the road during his drive.

Judge Karesh granted the habeas petition, ordering a new trial. He also modified Rodriguez's sentence from the death penalty to life in prison without parole because he had granted the Writ. The California Court of Appeal reversed in 1991, holding that the juror misconduct was harmless because the travel time between the two points was undisputed at trial, making Martin's misconduct immaterial. The court once again remanded for Judge Karesh to conduct a proper consideration of Rodriguez's automatic application for modification of the death sentence. The California Supreme Court refused to consider an appeal of this decision. On remand, Judge Karesh granted Rodriguez's motion to modify the sentence to life in prison without parole. The California Court of Appeal affirmed in June 1993.

In May 1994, Rodriguez filed a petition for a writ of habeas corpus in federal district court which was assigned to a magistrate judge for findings. The magistrate issued a Report and Recommendation in October 1995, recommending that the court grant the petition because she concluded that Rodriguez had been deprived of his constitutional rights by Martin's misconduct and by judicial coercion of the verdict.

The district court rejected this recommendation because the magistrate erred in her application of the law, and further held that Rodriguez had failed to establish that his conviction was substantially and injuriously affected by any constitutional errors. The district court agreed with the California Court of Appeal that the crucial question before the jury was a determination of the time Rodriguez left Crockett. Furthermore, it was undisputed at trial that it took about an hour to drive the 57 miles from Crockett to the scene of the crime. Since nothing Martin could have learned about time and distance between the two points could have any bearing on Rodriguez's departure time, the court held that the misconduct was harmless.

The district court also rejected the allegations of judicial coercion, finding that each of Judge Karesh's rulings was lawful, and that their cumulative effect was not coercive. He therefore denied the petition for habeas relief. Rodriguez filed this timely appeal requesting a new trial, almost twenty years after the two officers were murdered, on the grounds of juror misconduct and judicial coercion. Each claim will be considered in turn.

II

Rodriguez had a constitutionally protected right to have the jury decide the case based on evidence subject to confrontation, cross examination, and the assistance of counsel. See Thompson v. Borg, 74 F.3d 1571, 1574 (9th Cir.), cert. denied, Thompson v. White, --- U.S. ----, 117 S.Ct. 227, 136 L.Ed.2d 159 (1996). On habeas review, Rodriguez bears the burden of establishing that a constitutional error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993). Whether an instance of juror misconduct was prejudicial to the defendant is a mixed question of law and fact which we review de novo. See Thompson, 74 F.3d at...