Tracey v. Palmateer
| Decision Date | 29 August 2003 |
| Docket Number | No. 01-35940.,01-35940. |
| Citation | 341 F.3d 1037 |
| Parties | Joseph J. TRACEY, Petitioner-Appellant, v. Joan PALMATEER, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Anthony D. Bornstein, Assistant Federal Public Defender, Portland, OR, for petitioner-appellant Joseph Tracey.
Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Kathleen Cegla, Assistant Attorney General, Salem, OR, for respondent-appellee Joan Palmateer.
Appeal from the United States District Court for the District of Oregon; Owen M. Panner, District Judge, Presiding. D.C. No. CV-99-00910-HU.
Before: DONALD P. LAY,* J. CLIFFORD WALLACE, and RICHARD C. TALLMAN, Circuit Judges.
Opinion by Judge TALLMAN; Dissent by Judge LAY.
Joseph Tracey appeals the district court's denial of his petition for habeas corpus pursuant to 28 U.S.C. § 2254. Tracey's petition challenges the legality of his 1994 Oregon conviction for the first-degree murder of Scott Werner and unlawful use of a weapon. Tracey raises two issues on appeal. First, he says he was denied due process and his right to an impartial jury because the state trial court did not adequately investigate possible juror bias. Second, he claims his state court appellate counsel on his direct appeal was ineffective in violation of the Sixth Amendment.1 We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Victim Werner was the fiancée of Suzanne Winder. Winder owned property — where Winder and Werner lived — next to Tracey's property, but Winder refused to grant Tracey an easement so logging trucks could access Tracey's timber. Relations between Tracey and Winder became strained.
On August 9, 1993, Tracey invited Werner to Tracey's home to discuss the issue. Werner walked to Tracey's residence carrying a walking stick. As Werner approached, Tracey confronted Werner with a sawed-off shotgun. An argument ensued, and Tracey shot Werner in the stomach. Tracey later alleged self-defense by claiming Werner was about to strike Tracey with the stick. As Werner was lying on the ground, Tracey yelled, "Teach you never to come up here again, huh, mother-fucker." Werner died from the wound.
Upon hearing the shot, Winder, Lee Bankston (a friend of Werner's), and Gerry Ullman (a neighbor), all ran to the scene. Tracey threatened these witnesses with the gun but did not shoot.
On August 25, 1993, a grand jury in Josephine County, Oregon, indicted Tracey for first-degree murder and gun charges. On the first day of trial, the jury was selected. Once selected, the jurors were excused from the courtroom so the trial court could hear a pretrial matter. The jurors were then brought back into the courtroom, and the trial court provided the jury with preliminary instructions. The parties then gave their opening statements. At that point, the trial court excused the jurors for the day and instructed them not to discuss the case with the other jurors.
The next day, the state called its first witness, Tracey's wife. Her testimony until the first morning break only described the conflict over the easement, and did not touch upon the facts of the murder. During the break, the trial court informed the parties that the court had received a note from Juror Arganbright. Juror Arganbright had told the bailiff that she could not continue with the trial. The bailiff instructed her to put the reason in writing. The trial court read the note to the parties. The note stated:
I'm very sorry but can't continue as a juror on this case. My heart aches for these people and I can't find them guilty of murder. I almost started crying. That is tears came to my eyes hearing their situation and hardship. Before the jury was selected in talking to two women in line to use the restroom both expressed they felt he was guilty and had bad opinions of him. I expressed she had bad feelings about him — one expressed she had bad feelings about him and the other said, is there any question in reference to the verdict.
(Errors in original and emphasis added).
The trial court then questioned the defense counsel as to what action he believed the court should take in response to the note. Tracey's counsel, noting that the trial had just begun and none of the testimony introduced so far had discussed the shooting, argued that it would be premature to release Juror Arganbright based solely on the note. The prosecution maintained that, at a minimum, Juror Arganbright should be questioned by the trial court.
The court decided to question Juror Arganbright on the record. The court asked Juror Arganbright about her ability to serve as a juror. Juror Arganbright steadfastly maintained that she could not follow the law or be objective. The court then indicated its decision to excuse Juror Arganbright. But before actually excusing her, the trial court questioned Juror Arganbright about the conversations she claimed to have heard in the line to the restroom:
Q Ma'am, in your note you indicate that you had a conversation prior to jury selection with a couple of other ladies in the jury pool. Do you know if either of those ladies are currently on the jury?
A They both are.
Q They both are.
A They just were talking, you know. We were standing in line in the bathroom. There was two separate times. One —
Q That was before the jury selection?
A One was before and one was after.
Q After what portion of the jury selection?
A Yesterday.
Q After all of yesterday? Or?
A Let's see. The one conversation was in the bathroom before jury selection when you gave us all a break and we got to go back to the bathroom to the jury room.
Q A whole pile of folks or whatever?
A Right. That was one conversation. And she was just talking, and I was standing behind her and she was talking with another lady in front, that was in front of her and she just was expressing what I said in that note. And the second time was yesterday after you dismissed everyone, before the jury was selected. No. The second one was after the jury was selected and it was yesterday, after, after, — let's see. They both happened yesterday, I guess. That's right. We've only been here one day. One was before jury selection and one was after.
Q After jury selection we had opening statements and then the jury was excused. Did it occur before or after the opening statements?
A After. The second one.
Q Wasn't the jury just excused after that and sent home?
A I don't know. It was the time we were excused and we had — or maybe we were just sitting in the room until she said we could go home. I know we were sitting in that room and I don't really know if it was, if we came back into here, or if we — we had to sit in that room for a little while until she checked our names off, then we got to go home. I just know we were sitting in that room.2
Based on Juror Arganbright's testimony, the defense moved for a mistrial. The trial court, recognizing the lack of specificity in Juror Arganbright's testimony, denied the motion:
As to the other two, I think we have separate issues. As [Juror Arganbright] indicated during questioning a few moments ago, one of these conversations with one of the two women occurred before the jury was ever selected. So we have jurors that say all kinds of things about criminal defendants, about jury service, about this, that, and then we put them through the process and we tell them that they have to follow the rules and the presumptions of innocence and that sort of thing. There's nothing for this Court to feel that general comments such as that during jury pool is sufficient to cause a mistrial.
The other juror gives me a little more concern because the statement suggests that she has some bad opinions about the Defendant, or bad feelings, and that statement may have been made after jury selection and after they were sworn in. Frankly, I'm not sure from Mrs. Arganbright's comments whether that was before they took their second oath or sometime after the initial jury was selected and they were sitting in the jury room.
There's nothing in those comments that suggests to this Court sufficient to cause a mistrial, that that juror, even though she expressed having bad feelings, could not set those feelings aside as we ask them to do and could not comply with the law, require the State to prove beyond any reasonable doubt before a verdict of guilty would be rendered and at this point the Court is not prepared to declare any mistrial based on this one juror's notes.
Tracey's counsel objected to the trial court's ruling, asserting, The trial court responded:
THE COURT: I understand the objection. However, I don't think that's what the record and the facts actually show. The first juror, Mrs. Arganbright, has discussed, said that her emotional state now and in the future times during the trial might be such that she could not be fair and impartial. Period. This lady says, I have bad feelings about him. To me that's significantly different than saying I find him guilty at this point and I refuse to follow the instructions of the Court. One is an emotional state that has overcome her quite like in someone that falls ill during the middle of the trial and has to be excused. And the other one is a far cry from saying I'm not going to follow the law, I'm not going to presume innocence and I'm going to find him guilty, period. All it says is I have bad feelings about him.
The Court also, and I'm going to state this so the parties can put any objection on the record that they choose. It has been suggested to the Court on and off the record that we at least inquire from Mrs. Arganbright as to the jurors names that made these general comments. The Court does not intend to...
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