151 F.3d 970 (9th Cir. 1998), 95-99002, Dyer v. Calderon

Docket Nº:95-99002.
Citation:151 F.3d 970
Party Name:Alfred R. DYER, Petitioner-Appellant, v. Arthur CALDERON, Warden, of California State Prison at San Quentin, Respondent-Appellee.
Case Date:August 06, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 970

151 F.3d 970 (9th Cir. 1998)

Alfred R. DYER, Petitioner-Appellant,


Arthur CALDERON, Warden, of California State Prison at San

Quentin, Respondent-Appellee.

No. 95-99002.

United States Court of Appeals, Ninth Circuit

August 6, 1998

Argued and Submitted Dec. 18, 1997.

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[Copyrighted Material Omitted]

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Jon B. Streeter, Orrick, Herrington & Sutcliffe, San Francisco, California, for petitioner-appellant.

Dane R. Gillette, Deputy Attorney General, San Francisco, California, for respondent-appellee.

Appeal from the United States District Court for the Northern District of California; Vaughn R. Walker, District Judge, Presiding. D.C. No. CV-89-03454-VRW.


Opinion by Judge KOZINSKI; Dissent by Judge BRUNETTI; Dissent by Judge O'SCANNLAIN.

KOZINSKI, Circuit Judge:

Petitioner was convicted of murder and sentenced to death. We consider whether he was denied a fair trial because one of the jurors obtained her seat by lying during voir dire.


In 1980 Alfred Dyer and two friends took four hostages and drove them into the remote hills overlooking Oakland, California. They ordered the hostages out of the car and instructed them to lie down alongside the road. Dyer and an accomplice then shot all four; amazingly, two survived. Dyer admitted participating in the shootings but argued diminished capacity.

During voir dire the jurors had been asked the usual questions, including:

  1. Have you or any of your relatives or close friends ever been the victim of any type of crime? ...

  2. Have you or any of your relatives or close friends ever been accused of any offense other than traffic cases?

    Jessica Freeland, the last prospective juror to be questioned, answered "no" to both questions. She was named as an alternate and eventually was seated as a juror and helped decide Dyer's fate.

    After the guilt-phase verdict, the defense learned that Freeland's brother Richard had been shot and killed some six years earlier. When questioned by the trial judge, Freeland explained that she had answered "no" to question 13 because she thought the shooting was an accident, not a crime. The trial judge

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    accepted her explanation. The prosecutor--who had also prosecuted Richard Freeland's killer--had just turned over to the court the file in that case. A quick review of the file would have disclosed that the killing had none of the earmarks of an accident: Richard, who was just seventeen, was pistol-whipped four times and then shot in the back of the head. The prosecutor said nothing, the judge did not examine the file and therefore remained unaware of the facts which undermined Freeland's explanation. Freeland remained on the jury, which then sentenced Dyer to death. The California Supreme Court affirmed. See People v. Dyer, 45 Cal.3d 26, 246 Cal.Rptr. 209, 753 P.2d 1 (1988).

    On federal habeas, Dyer's lawyers conducted an investigation of Jessica Freeland and discovered further evidence casting doubt on her veracity. The district court held an evidentiary hearing on the issue of juror bias but concluded that it was bound by the state court's finding of impartiality and denied relief. A divided panel of this court affirmed. See Dyer v. Calderon, 122 F.3d 720 (9th Cir.1997). A majority of active judges subsequently voted to accept Dyer's suggestion for rehearing en banc.


    A. The Sixth Amendment guarantees criminal defendants a verdict by impartial, indifferent jurors. The bias or prejudice of even a single juror would violate Dyer's right to a fair trial. See, e.g., United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.1977). One important mechanism for ensuring impartiality is voir dire, which enables the parties to probe potential jurors for prejudice. For voir dire to function, jurors must answer questions truthfully. Nevertheless, we must be tolerant, as jurors may forget incidents long buried in their minds, misunderstand a question or bend the truth a bit to avoid embarrassment. The Supreme Court has held that an honest yet mistaken answer to a voir dire question rarely amounts to a constitutional violation; even an intentionally dishonest answer is not fatal, so long as the falsehood does not bespeak a lack of impartiality. See McDonough Power Equip. v. Greenwood, 464 U.S. 548, 555-56, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984). 1 Accordingly, we must determine whether Freeland's answers were dishonest and, if so, whether this undermined the impartiality of Dyer's jury. 2

    The state trial judge here held a brief hearing in chambers and found that Freeland was candid and impartial. The state clings to this finding, reminding us that juror impartiality is a question of historical fact. See Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). Moreover, state court fact findings are presumed to be correct; we may set them aside only in limited circumstances specified by statute. See 28 U.S.C. § 2254(d)(1)-(d)(8) (1994). 3 Dyer argues that one of these circumstances applies to him, namely that "the material facts were not adequately developed" by the state courts. 28 U.S.C. § 2254(d)(3) (1994).

    B. Freeland's candor first came into question after the jury found Dyer guilty of murder but before the start of the penalty phase. Freeland's estranged husband, Melvin Provost, had been arrested for rape earlier that month. Although the details are murky, it seems that Dyer and Provost crossed paths in the courthouse jail and Provost told Dyer that Freeland's brother had been shot and killed some years earlier. According to Dyer's lawyer, Provost said that Freeland "had expressed strong views about

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    that event and the circumstances surrounding it." The court turned down defense counsel's request that Provost be called as a witness but encouraged counsel to investigate.

    The next morning, just before the start of the penalty phase, the court returned to the question of Freeland's bias. The prosecutor, Jerry Curtis, explained that he was familiar with the Richard Freeland homicide:

    I remember the case of Richard Freeland as a homicide victim, I had the case myself, and it was a plea bargain case to a manslaughter. And it was a case where there was some kind of an argument in a block in front of some apartments and someone was killed.

    Curtis then handed the file over to the judge, who called Freeland into chambers.

    The judge asked Freeland if anyone in her family had been the victim of a homicide, and this time she answered yes. He then asked whether she was aware of any legal action taken, civil, criminal or otherwise. Freeland answered: "It was an accident. They didn't let us know when the trial was going on so we don't know what happened to the man that accidentally shot him." This, she felt, justified her voir dire answer: "Well, if it was an accident I don't think that's really a crime, is it?" Freeland then explained why she thought the shooting was accidental:

    The guy is not some, you know, maniac or anything like that. As a matter of fact, I saw him once or twice and he didn't look like he did this to my brother on purpose. He was the manager of an apartment that my brother happened to be at. It was a party going on and he was just trying to clear everybody out of the party because there was a fight or something, and what supposedly happened is that the gun went off and it happened to shoot my brother. So you can't hate somebody or accuse him for doing it on purpose, or something like that. That was his--you know, that's what he said and, you know, we had no choice but to believe him. He didn't even know my brother, so he had no reason to just shoot him for nothing. So it was just an accident.

    (Emphasis added.)

    Dyer's lawyer asked Freeland if she had spoken to the police or to the District Attorney about the case, and she answered no. He then asked: "And no one from your family ever testified in court at all?" Freeland responded, "Oh, no." The trial judge did not ask Freeland about her husband's statement that she had "expressed strong views" about the shooting. Nor did he question Freeland about the fact that her husband was then in jail, which seemed to conflict with her answer to voir dire question 15. Provost himself was never questioned.

    On the basis of this hearing, which seems to have lasted less than five minutes, the judge retained Freeland on the jury: "She has explained her answer [to the voir dire questions], and I would not characterize anything she did or did not do as demonstrating any lack of candor, as far as I'm concerned." Was it plausible that Freeland could be so confused about the circumstances of her brother's death? Yes, the judge explained:

    There's no foundation establishing how well she knew the brother. We have brothers and we have brothers. We're making a whole series of assumptions. I don't know, you may not know, where the homicide occurred, how much information she had about it, except for her answers, and the record speaks for itself.

    (Emphasis added.) Why the judge thought he could not verify the details of the crime--even where it occurred--when he had the casefile in his hands, is a mystery.

    C. A court confronted with a colorable claim of juror bias must undertake an investigation of the relevant facts and circumstances. See 28 U.S.C. § 2254(d)(3) (1994); Remmer v. United States, 350 U.S. 377, 379, 76 S.Ct. 425, 100 L.Ed. 435 (1956); Remmer v. United States, 347 U.S. 227, 230, 74 S.Ct. 450, 98 L.Ed. 654 (1954). An informal in camera hearing may be adequate for this purpose; due process requires only that all parties be represented, and that...

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