386 F.3d 896 (9th Cir. 2004), 03-35294, Casey v. Moore

Docket Nº:03-35294.
Citation:386 F.3d 896
Party Name:John Henry CASEY, Petitioner-Appellant, v. Robert MOORE, Respondent-Appellee.
Case Date:October 12, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 896

386 F.3d 896 (9th Cir. 2004)

John Henry CASEY, Petitioner-Appellant,

v.

Robert MOORE, Respondent-Appellee.

No. 03-35294.

United States Court of Appeals, Ninth Circuit

October 12, 2004

Argued and Submitted April 1, 2004

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John Henry Browne (argued), Browne & Ressler, Seattle, WA, for the petitioner-appellant.

Diana M. Sheythe, Assistant Attorney General, Olympia, WA, for the respondent-appellee.

Paul D. Weisser (argued), Deputy Attorney General, Olympia, WA, for the respondent-appellee.

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Appeal from the United States District Court for the Eastern District of Washington; Justin L. Quackenbush, Senior Judge, Presiding. D.C. No. CV-02-00291-JLQ.

Before CANBY, WARDLAW, and GOULD, Circuit Judges.

GOULD, Circuit Judge:

John Henry Casey appeals the district court's denial of his habeas petition, insisting that a biased jury that was convened for a trial in an improper venue convicted him after considering impermissible hearsay evidence, and after improper closing argument from the prosecutor, all in violation of the United States Constitution. We have jurisdiction pursuant to 28 U.S.C.§§ 1291, 2253, and we affirm in part and dismiss in part.

I

We set forth first John Casey's testimony about how his wife was shot and died. We next discuss the facts most pertinent to John Casey's claim of improper venue. Finally, we review briefly the facts pertinent to John Casey's claims of improper admission of hearsay testimony and of alleged prosecutorial misconduct in closing argument.

A

While with her husband John Casey in the garage of their home in Wenatchee, Washington, on October 11, 1998, Rosemary Casey was shot by a bullet fired from John Casey's semiautomatic .30-06 caliber hunting rifle. Only John Casey's version of the shooting incident survives, as Rosemary Casey died in a hospital shortly after suffering the gunshot wound.

At his trial in Chelan County Superior Court on charges for second degree murder, second degree felony murder, and first degree manslaughter, John Casey offered the following testimony: The day before the shooting, he had gone hunting with one of Rosemary Casey's colleagues from the hospital at which Rosemary Casey worked as a physician. While cleaning the van that he used for the hunting trip, John Casey decided to oil his rifle by spraying Break Free oil down the barrel because the barrel was rusty. After placing a piece of cardboard and some rags over a garbage can--which served as a makeshift workspace he planned to use to clean the gun--John Casey moved the slide on the rifle back and no shell ejected or was visible. He let the slide close, and started to oil the rifle. Next, he went back to cleaning the van. In John Casey's testimonial of the critical events, Rosemary Casey then came into the garage to help unload some of the clothing and blankets from the van.

John Casey gave his account of an accidental death: He testified that he asked Rosemary Casey to help him clean the gun by blowing air down the barrel from an air compressor. John Casey told the jury that while he held a rag over the rifle's action (to catch the cleaning solvent as it was forced through the barrel), Rosemary Casey tried to force air down the barrel with an air compressor nozzle. John Casey further testified that when none of the oil that he had placed in the rifle came out, despite air having been blown into the barrel, he turned the rifle over. His key defensive testimony was that he then unintentionally touched the trigger, causing the gun to fire a bullet that struck Rosemary Casey in the chest.

John Casey summoned help from a neighbor, who called 911. An ambulance arrived and rushed Rosemary Casey to the hospital. She was later flown to Seattle for treatment but, regrettably, she died the next day from the gunshot wound.

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B

Law enforcement viewed the case differently, and accused John Casey (hereafter referred to as "Casey") of second degree murder, felony murder, and manslaughter. Before jury selection began, Casey moved for a change of venue, arguing that prejudicial pretrial publicity in Wenatchee's only daily newspaper, the Wenatchee World, 1 together with small-town gossip and reports on the local radio about the shooting incident, made it impossible for him to have a fair trial there. The court noted that the circulation of Wenatchee World was 29,000 papers on weekdays and 30,000 on weekends, and that the number of potential eligible jurors in the county was 60,000. The parties disagreed, however, about whether the paper's circulation covered additional counties beyond Chelan County, which would lessen the impact of the paper on the readership in the county from which the prospective jury panel would be drawn. The district court denied the motion for change of venue. However, the court reserved to Casey the right to renew his motion after jury selection began. Eighty six prospective jurors answered inquiries in a special jury questionnaire regarding their knowledge of the case, their knowledge of the parties, their familiarity with firearms, whether they had been exposed to pretrial publicity from newspaper articles or radio reports, whether they had discussed the case with anyone, whether they had formed an opinion about the case, and whether jury duty would cause undue hardship. Casey renewed his change of venue motion before jury selection began, but the court denied the motion and continued with voir dire.

The court permitted nine peremptory challenges, three more than usual for a felony case. Of the 86 potential jurors in the pool, 34 or 35 jurors indicated in the questionnaires that they had formed some opinion about the case, and they were excused. Fifteen others were excused for hardship reasons. Casey's counsel asked the jury panel members in general voir dire whether they regularly read the Wenatchee World news paper. Twenty-five indicated that they had, and of these, two were seated on the final jury panel. Nine jurors indicated that they had heard that Casey was a homemaker and that his wife was the person who earned the income for the family; these nine jurors were excused. None of the eleven jurors who indicated that he or she had close friends who were doctors was seated on the jury panel. Six jurors said that they, or persons close to them, were patients of Rosemary Casey, and these jurors felt that their opinion might be in some way affected by the relationship; none of these six jurors was seated on the final jury. Both parties exercised all nine of their peremptory challenges. As in general voir dire, in individual voir dire (conducted in the judge's chambers outside the presence of the other jurors), the court excused all jurors who said that they had formed opinions about the case or who expressed that it would be difficult for them to be impartial.

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Of the forty-three prospective jurors questioned individually in voir dire, three were seated on the final jury panel. Juror Simpson was questioned about a response she had writ ten in the special questionnaire where she wrote, "I don't believe guns go off accidentally in the hands of adults." Defense counsel asked her, "Do you feel like you prejudged Mr. Casey in respect to this matter or are you willing to listen to the facts that you hear in the courtroom, to make your decision then?" She replied, "Yes." As a follow-up to this ambiguous answer, defense counsel asked, "Are you saying, therefore, that you feel you have formed an opinion concerning perhaps your feeling on the outcome of the case, the way it stands now?" Juror Simpson replied, "The limited amount of knowledge that I have at this point, which is not very much. I have a feeling, yes, what I feel yes, is what I feel. I'm willing to listen and form my opinions as I hear the evidence presented." Defense counsel prodded further, "So you are open and if the evidence would support guilty you would go that way; if it supports not guilty, you feel you could go that way," to which she replied, "Yes." She also stated that she had no qualms going either way.

Juror Lind, who was also questioned individually, said that she knew two scheduled witnesses, Dr. Mike Anderson (who had treated her son) and Dr. Lisa Peterson (who had treated her on one occasion). Lind indicated that she had not formed an opinion about the case, that she had not spoken to either witness about the case, and that she would not give more weight or credence to those two witnesses than to others.

The third juror who was evaluated individually, Juror McLaren, expressed concern that the extensive questioning at voir dire might cause some jurors to make assumptions and form opinions: "I was ... a little afraid or worried that perhaps your questions might lead to some of us forming opinions. I kept thinking, boy, maybe"--She was reminded that the individual voir dire was conducted in closed chambers. The juror gave an assurance that she would be fair in the case, and that if she were Casey she would want herself on the jury, "because I am a very honest person, but not by choice."

After the jury was seated, Casey again renewed his motion to change venue, arguing that the jury had been contaminated by pretrial publicity and that the trial was the topic of wide spread discussion in Wenatchee. Again, the court denied the motion, noting, inter alia, that although many prospective jurors had familiarity with the case, both parties were given "an unrestricted ability to question the jurors in general voir dire and individually," and that the court had excused "all jurors who expressed even some concern about the ability to be fair, and not...

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