Fisher v. Roe
| Decision Date | 27 August 2001 |
| Docket Number | RESPONDENT-APPELLANT,00-55035,RESPONDENTS-APPELLANTS,Nos. 00-55031,PETITIONER-APPELLEE,s. 00-55031 |
| Citation | 263 F.3d 906 |
| Parties | (9th Cir. 2001) GARY LEE FISHER,, v. ERNEST C. ROE, WARDEN; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, MICHAEL COLLINS,, v. THEO WHITE, WARDEN, |
| Court | U.S. Court of Appeals — Ninth Circuit |
Adrianne S. Denault, Attorney General's Office, San Diego, California, for the respondents-appellants.
Monica Knox, Federal Public Defender's Office, Los Angeles, California, for the petitioners-appellees.
Appeal from the United States District Court for the Central District of California Gary L. Taylor, District Judge, Presiding. D.C. No. CV-97-00874-GLT; D.C. No. CV-99-00301-GLT(EE)
Before: Stephen S. Trott, Sidney R. Thomas, and Marsha S. Berzon, Circuit Judges.
Gary Fisher and Michael Collins were convicted in California state court in 1992, of murder. Ernest Roe and Theo White, the wardens of the prisons in which Fisher and Collins are incarcerated, appeal the district court's order granting Fisher and Collins writs of habeas corpus. The appellees' petitions for federal habeas relief were based on a single incident alleged to have occurred at their joint trial: a readback during the jury's deliberations of supposedly critical testimony, without the knowledge or participation of the defendants and their attorneys. The district court granted Fisher and Collins relief on the ground that the readback from which they were excluded had violated their right to "a fair and just hearing --and thus to due process --" during a critical stage of the trial. The wardens challenge this order, arguing that 1) the district court's factual findings were clearly erroneous, 2) the right to be present at a readback of testimony is not "clearly established" by Supreme Court precedent, as required by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. §§ 2254(d)(1) ("AEDPA"), and 3) any constitutional error that may have occurred was harmless. We have jurisdiction of this timely appeal pursuant to 28 U.S.C. §§ 1291 and 28 U.S.C. §§ 2253, and we affirm.
Because the repugnant facts relating to the underlying crime are not essential to the issue at hand, we will describe them only briefly. On October 29, 1991, at around 10:00 p.m., Bryant Powell was shot and killed at the Foothill Villas apartment complex in San Bernardino, California, under circumstances strongly indicating retaliatory gang activity. Two security officers from Foothill Villas testified that they had observed Fisher and Collins in the complex shortly before the murder took place, and one of these officers testified that he saw Fisher fire a shot. Fisher and Collins then took off in a white pickup truck, and the security officers followed. Although the officers lost sight of the truck during the highspeed chase that ensued, they eventually caught up with Fisher and Collins at a duplex apartment not far from the site of the shooting.
Fisher and Collins were arrested there for Powell's murder.
Fisher and Collins were tried jointly and presented an alibi defense. Five defense witnesses testified that Fisher and Collins had been at the houses of various friends and relatives between 9:00 and 10:20 p.m. on the night of the murder, and had only arrived at the duplex where they were arrested shortly before the officers arrived. Despite this testimony, both men were found guilty.
While reviewing, after his conviction, the court clerk's trial minutes, Fisher noticed to his surprise that the jury had at one point during deliberations requested a readback of testimony. Claiming that the readback occurred without their knowledge or consent, both Fisher and Collins filed habeas petitions in the California Supreme Court, asserting that their federal constitutional right to be present and represented by counsel at trial had been violated because they were excluded from the readback, and because the trial judge had failed to supervise the process. These petitions were denied without explanation in one-sentence orders.
Having thus exhausted their state remedies, Fisher and Collins filed federal habeas petitions, alleging that their rights to due process were violated because they, their attorneys, and the trial judge were absent from and had no control over the readback proceedings.1 The district court granted these petitions, and the wardens now appeal.
Fisher and Collins presented to the district court the following evidence regarding the readback. The court clerk's minute order for their trial indicated that a readback of testimony occurred on February 7, 1992, the second day of deliberations. That minute order indicates that the court reporter entered the jury room twice to conduct a readback, for a total time of about one hour. The minute order also indicates that the second time the reporter entered the jury room, she conducted a "partial readback." The body of the minute order does not contain any reference to the court, the prosecutor, the defense attorneys, or the defendants.
To flesh out the implications of the minute order, Fisher and Collins presented evidence that neither they nor their lawyers knew that the readback took place. Each petitioner submitted a personal declaration stating that he had no knowledge of the readback until long after the trial was over. Although Fisher's trial lawyer died shortly after the trial, Collins's lawyer, John Kearney, also declared that he was never informed that the jury had requested a readback. Alleging that he had a present memory of the specific events of the trial, Kearney recalled that he and Fisher's lawyer were awaiting the verdicts at a restaurant near the courthouse, and that they were never contacted by court personnel regarding a read-back. Kearny also declared that it was his practice to routinely go to the courthouse when a jury requested a readback "to make sure the jury listens to both sides and not some skewed perspective of the witnesses' direct testimony only."
Of the jurors, apparently only the foreman, James Handgis, had any useful concrete recollection of the readback. He testified during an evidentiary hearing that the jury reached a point in its deliberations where the majority of the jurors had reached a decision, but two or three people wanted to make absolutely certain that their notes regarding the sequence of events were correct. Handgis said these jurors wanted to verify that the defendants could have gotten from the crime scene to the place where they were arrested in the time frame described by the prosecution witnesses. Handgis referred to the time sequence as "the only iffy issue" and"the big issue" in the case.
Handgis further testified that the jury contacted the bailiff and told him that they wanted to see the court reporter. When the court reporter appeared, the jury told her that they wanted to hear the testimony "from this point to this point," from the time Fisher and Collins "left the scene of the crime to when they were apprehended." Handgis testified that the court reporter told the jury that she would have to "get the stuff and put it together `cause it was kind of a lot.' " When the court reporter returned, she read back the testimony until the jury told her it had heard enough.
Neither the court reporter nor any court personnel had any recollection whatsoever of this readback. The court reporter testified at the evidentiary hearing, but could recall nothing specific. She did, however, testify that it was not her normal procedure to read testimony back to a jury without first obtaining authorization of the judge. Similarly, the trial court bailiff declared that he had no memory of the events in question, but that he would never tell a court reporter to read back testimony without first obtaining approval of the judge. In a recorded telephone conversation with counsel for Fisher and Collins and the wardens, the trial judge stated the he had no recollection of the readback. He did, however, indicate that he would not allow a readback to occur without his authorization or the consent of both attorneys. However, because the trial judge did not make these statements under oath, the attorney general successfully objected to them, and the conversation was not officially entered into the record in this case. Hence, the district court did not consider it as evidence.
Other than the nonspecific testimony of James Handgis, the record contains no indication of what the jury did, or did not, review.
Based on this showing, the district court concluded that "it is simply incontrovertible that something went wrong and regular procedures were not followed." Noting that"respondents do not contend that either the petitioners or their lawyers were notified before the readback," the court made the following specific findings of fact:
1. Fisher and Collins and their attorneys were never informed that the jury had requested a readback.
2. The court reporter decided when to stop reading testimony based on the reaction of the jurors.
3. The trial court failed to control the readback.
The court determined that these facts amounted to a denial to the defendants of a record of what transpired before the jurors during their review of "the big issue." The district court then concluded that habeas relief was warranted based on the uninformed and unwaived exclusion of the defendants and their attorneys from the readback proceedings.
We review de novo a district court's decision to grant or deny a state prisoner's petition for habeas relief. Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir. 2000). The district court's factual findings, however, are...
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