475 F.3d 708 (6th Cir. 2007), 05-1319, Carroll v. Renico

Docket Nº:05-1319.
Citation:475 F.3d 708
Party Name:Jarmaine CARROLL, Petitioner-Appellant, v. Paul RENICO, Warden, Respondent-Appellee.
Case Date:February 02, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 708

475 F.3d 708 (6th Cir. 2007)

Jarmaine CARROLL, Petitioner-Appellant,

v.

Paul RENICO, Warden, Respondent-Appellee.

No. 05-1319.

United States Court of Appeals, Sixth Circuit.

February 2, 2007

Argued: December 8, 2006.

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 03-73592—Avern Cohn, District Judge.

COUNSEL

ARGUED:

Gerhardt A. Gosnell II, Chester, Willcox & Saxbe, Columbus, Ohio, for Appellant.

Janet A. VanCleve, Office of the Attorney General, Lansing, Michigan, for Appellee.

ON BRIEF:

Gerhardt A. Gosnell II, Sarah D. Morrison, Chester, Willcox & Saxbe, Columbus, Ohio, for Appellant.

Janet A. VanCleve, Office of the Attorney General, Lansing, Michigan, for Appellee.

Page 709

Before: CLAY, ROGERS, and SUTTON, Circuit Judges.

SUTTON, J., joined. CLAY, J. (pp. 714-18), delivered a separate opinion concurring in part and dissenting in part.

OPINION

ROGERS, Circuit Judge.

We affirm the district court's denial of Jarmaine Carroll's habeas petition because the Michigan state courts did not unreasonably apply United States Supreme Court precedent in holding (1) that the state trial court adequately dealt with an incident of improper jury contact, and (2) that counsel for co-defendant could "stand in" for defendant's counsel during reinstruction of the jury without violating defendant's Sixth Amendment rights.

On November 7, 1997, Elisia Brockington and two masked, armed intruders shot Samir Dawood in the leg during a robbery of the Eagle Market. Brockington, who admitted to being an accomplice in the crime, described to the police Carroll's involvement in the robbery. The State of Michigan subsequently charged Carroll with several crimes, including armed robbery, assault with intent to commit murder, and conspiracy to commit armed robbery. He stood trial with codefendants William and Michael Thompkins.

On Thursday, May 6, 1999, the jury began deliberating the fate of Carroll and William Thompkins. (Michael Thompkins elected to have the trial judge decide his fate.) Two events pertaining to the jury's deliberations are significant to this appeal. First, on the second day of deliberations, the jury requested that the trial judge reinstruct the jury on certain definitions and elements of the crimes. Carroll's attorney, Richard Powers, who was absent during the start of the reinstructions, entered the courtroom towards the end of the trial court's response to the jury's request. At the end of the reinstruction, which was lengthier than the original instructions and included several examples, counsel for co-defendant, Regina D. Jemison, objected on behalf of codefendant and Carroll. The trial judge overruled the objection and acknowledged that counsel for co-defendant "stood in" for Carroll's attorney, noting, "She did more than stood in, she stood up."

The second relevant event occurred on Tuesday, May 11,1999, when the trial court received a note from the jury that family members of one of the defendants harassed two jurors. Juror number 10 stated that, as she was waiting outside for someone to pick her up, a man walked past her and said he was going to "jack her." The man then walked to a car, and looked back at the juror. This prompted her to reenter the building to wait for her ride. Juror number 11, meanwhile, stated that a female asked her for her name. Having heard these two jurors' stories, the trial judge assured the jury that deputies would protect them.

An hour later, the jury convicted Carroll of conspiracy to commit armed robbery, and the trial judge asked the two jurors whether earlier events affected the verdict. Both jurors said that the earlier events did not affect their decisions as to defendants' guilt. Carroll's counsel did not ask for a more detailed investigation or propose a different procedure to investigate the incidents. The judge later sentenced Carroll to fifteen to thirty years. Defense counsel moved for a mistrial because of the contact with the jurors, which the state trial court rejected.

In an unpublished opinion, the Michigan Court of Appeals affirmed Carroll's conviction, People v. Carroll, No. 220556, 2001 WL 1277422 (2001) and the Michigan

Page 710

Supreme Court subsequently denied Carroll leave to appeal. 466 Mich. 884, 646 N.W.2d 471 (2002). As to Carroll's argument that the trial judge should have granted a mistrial because of jury tampering, the Court of Appeals noted that "the two jurors were not biased against" Carroll. As to Carroll's right-to-counsel argument, the Michigan Court of Appeals noted that co-defendant's counsel, who objected to the conspiracy instructions on behalf of both defendants, "stood in" for Carroll's counsel during the reinstruction.

Carroll filed a petition for habeas relief, which the federal district court denied on October 18, 2004. The federal district court noted that, on the issue of investigating jury tampering, "the preferred course of action would have been to question the jurors individually regarding whether their impartiality was impacted by contact with the unknown persons rather than questioning the jurors together." Nevertheless, the court held that "it cannot be said that the state court's conclusion was contrary to or an unreasonable application of Supreme Court precedent." As to Carroll's denial of the right to counsel, the court noted that, while "it would have been prudent for the trial court to state on the record prior to reinstructing the jury that [counsel for co-defendant] was temporarily representing" Carroll, "the state court's determination that [Carroll] was represented by counsel during reinstruction was not an unreasonable determination of the facts in light of the evidence, nor was it an unreasonable application of Supreme Court precedent."1

The district court properly denied Carroll's petition for habeas relief because the Michigan courts' decisions did not involve an unreasonable application of clearly established Supreme Court precedent or result from an unreasonable determination of facts. A federal court may grant a writ of habeas corpus on behalf of a person in state custody only if the judgment of the state: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) & (2).

I. The Michigan Court Did Not Unreasonably Apply Federal Law In Holding That The Trial Court Adequately Investigated Allegations Of Improper Contact With Jurors.

Carroll's argument that the trial court failed to investigate allegations of improper contact with jurors suffers from two serious flaws. First, the record simply does not support Carroll's description of events, namely that the trial court "prohibited counsel for [Carroll] to participate in the investigation" and "ignored the request of [Carroll's] trial counsel to inquire of the jury after they rendered the verdict." Instead, the record demonstrates that the trial court took the lead in investigating the claims and did not prevent Carroll's counsel from asking for a more in-depth investigation.

Page 711

The relevant section of the record begins after the jury returned a guilty verdict. At that point, the trial court asked counsel, "Do you want a polling?" to which counsel answered, "Can we inquire?" presumably as to any alleged bias resulting from the statements to jurors. In response to counsel's request, the trial court initiated an inquiry, asking both jurors whether the statements had any impact on their deliberations. The two jurors answered in the negative.2 The judge then asked, "Do you want a polling?" to which counsel answered, "Yes." The trial court then polled the jury.

It is significant that counsel never asked the trial court to conduct any further investigation or to question the jurors individually in closed chambers. See White v. Smith, 984 F.2d 163,166 (6th Cir. 1993) (observing that counsel did not request a hearing for the purpose of assessing the impact of statements that the jury heard); United States v. Walker, 160 F.3d 1078, 1084 (6th Cir. 1998) (same for impact of juror riding in elevator with co-defendant). Carroll is simply incorrect in stating that the trial court prohibited anyone from participating in the investigation or ignored anyone's requests because counsel did not make any requests.

Second, Carroll's argument falters because precedent from the United States Supreme Court does not require more than what...

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