Hegler v. Borg, 94-55450

• Decision Date: 27 March 1995
• Docket Number: No. 94-55450,94-55450
• Citation: 50 F.3d 1472
• Parties: James Edward HEGLER, Petitioner-Appellant, v. Robert G. BORG, Warden; Dan Lungren, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1472

50 F.3d 1472

James Edward HEGLER, Petitioner-Appellant, v. Robert G. BORG, Warden; Dan Lungren, Respondents-Appellees.

No. 94-55450.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 7, 1995.

Decided March 27, 1995.

Charles G. Bakaly, III, Morgan, Lewis & Bockius, Los Angeles, CA, for petitioner-appellant.

Frederick C. Grab, Deputy Atty. Gen., Los Angeles, CA, for respondents-appellees.

Appeal from the United States District Court for the Central District of California.

Before: TROTT, FERNANDEZ, and T.G. NELSON, Circuit Judges.

TROTT, Circuit Judge.

OVERVIEW

California state prisoner James Edward Hegler appeals the district court's decision to dismiss his 28 U.S.C. Sec. 2254 petition for writ of habeas corpus challenging his conviction and sentence for murder. Hegler contends the district court erred by treating the violation of his derivative Sixth Amendment constitutional right to be present at the reading of trial testimony to the jury during deliberations as a harmless "trial error," rather than a "structural error." We have jurisdiction pursuant to 28 U.S.C. Sec. 2253, and we affirm.

BACKGROUND

1. The Law

The United States Supreme Court in Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), divided the class of constitutional errors that may occur during the course of a criminal proceeding into two categories: trial error and structural error. Structural error is a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Id. at 310, 111 S.Ct.

                at 1265.   Accordingly, where a criminal proceeding is undermined by a structural error the, "criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence," and the defendant's conviction must be reversed.  Id.  Trial error, on the other hand, is error "which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless."  Id. at 307-08, 111 S.Ct. at 1263-64
                

Until recently, federal courts applied the Chapman harmless error standard to all criminal convictions tainted by trial error. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Under this test "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Id. at 24, 87 S.Ct. at 828. While the Chapman standard remains applicable to criminal convictions challenged on direct appeal, the Supreme Court recently declared that a less strict standard is appropriate when a state criminal conviction is attacked collaterally. See Brecht v. Abrahamson, --- U.S. ----, ---- - ----, 113 S.Ct. 1710, 1721-22, 123 L.Ed.2d 353 (1993). Thus, in Brecht the Supreme Court held that a habeas petitioner is not entitled to relief unless the record demonstrates the trial error " 'had substantial and injurious effect or influence in determining the jury's verdict.' " Id. at ----, 113 S.Ct. at 1722 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)).

2. Facts and Prior Proceedings

Hegler was charged with first degree murder in the shooting death of Kerry James during an illegal drug transaction. At trial, Jeanetta Thomas provided key testimony linking Hegler to the murder. After the jury began its deliberation, the jurors asked to hear Thomas's testimony again. Because Hegler's attorney had explicitly declined the opportunity, neither Hegler nor his attorney were present when the court reporter read the testimony to the jury. The jury returned a guilty verdict.

The California Court of Appeal affirmed Hegler's conviction for first degree murder, and the California Supreme Court denied Hegler's petition for review. Having exhausted his state law remedies, Hegler then filed a petition for writ of habeas corpus in federal district court. The district court dismissed the petition, and Hegler appealed.

In Hegler v. Borg ("Hegler I"), 990 F.2d 1258 (9th Cir.1993), a panel of this court determined Hegler had not waived his right to be present during the reading of the trial testimony, and his absence from that proceeding was constitutional error. The court further determined that "there is nothing in the record to overcome the presumption that the error was prejudicial." Id. at 1258. Accordingly, the panel remanded "for further proceedings to determine if the error was harmless," and warned that the "state must carry its burden [to show harmless error beyond a reasonable doubt] or the writ must issue." Id. The Hegler I decision was filed on April 6, 1993. On April 21, 1993, the Supreme Court filed Brecht v. Abrahamson, --- U.S. ----, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), wherein the Court announced a new harmless error standard for determining when a habeas petitioner is entitled to relief.

3. The District Court Decision

On remand, the district court held an evidentiary hearing ¹ to assess whether the constitutional error affected the jury's verdict. The district court examined the court reporter who at trial was responsible for reading back the testimony to the jury. The court reporter explained she was trained to read back testimony without using inappropriate voice inflection, word emphasis, facial expression, or body language; however, she stated she had no independent recollection of reading back testimony during Hegler's trial. She demonstrated her technique to the district court by reading, from her stenographic The district court also examined four of the jurors. Each juror recalled that the court reporter's readback was professional and that the substance of the readback was not materially different from the actual testimony of the witness during trial.

notes, a portion of the trial testimony. The district court noted that the court reporter conducted the readback in a professional style, and found her to be a credible witness. Although the court reporter made two errors during the readback demonstration, the district court observed that at the time the testimony was read to the Hegler jury, a trial transcript was not available and Hegler therefore would have been unable to detect such errors.

The district court held that the evidence did not warrant the grant of habeas relief. The district court declined Hegler's invitation to construe the constitutional error as structural error. The district court concluded that the law of the case doctrine precluded a determination inconsistent with Hegler I's implicit characterization of the constitutional error as trial error.

Applying the standard announced by the Supreme Court in Brecht, the district court found that the record did not demonstrate that the trial error had a substantial and injurious effect or influence in determining the jury's verdict. While acknowledging that Hegler I instructed the district court to determine whether the trial error was harmless beyond a reasonable doubt, the district court nevertheless concluded that Brecht was the proper standard to employ because it represented an intervening change in the law which excused the application of the law of the case doctrine. Accordingly, the district court entered judgment dismissing Hegler's petition with prejudice.

STANDARD OF REVIEW

The decision whether to grant or deny a petition for habeas corpus is reviewed de novo. Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir.1994). "To the extent it is necessary to review findings of fact, the clearly erroneous standard applies." Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991).

DISCUSSION

Hegler argues the district court erred by failing to classify the violation of his "presence right" as structural error. The government claims the district court correctly concluded it was foreclosed from considering the nature of the constitutional error because a panel of this court in Hegler I implicitly categorized Hegler's absence as trial error. Similarly, the government contends the law of the case doctrine precludes our reconsideration of the panel's decision.

1. The Law of the Case

"Under the law of the case doctrine, one panel of an appellate court will not as a general rule reconsider questions which another panel has decided on a prior appeal in the same case." Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir.1991) (internal quotations and brackets omitted). Although an appellate panel's observance of the doctrine is discretionary, a prior decision should be followed unless (1) the decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced at a subsequent trial. Id. The doctrine, however, applies only to issues considered and actually decided by the first court. United States v. Cote, 51 F.3d 178, 181 (9th Cir.1995). "Although the doctrine applies to a court's explicit decisions as well as those issues decided by necessary implication, it clearly does not extend to issues an appellate court did not address." Id. (citations and internal quotations omitted).

Applying these principles, we think it would be inappropriate to accord binding effect to the panel's decision in Hegler I. The panel grounded its conclusion on an analysis that neither acknowledged nor discussed the trial error, structural error dichotomy. There is no assurance the panel considered the nature of the error in question before directing the district court to apply the harmless error standard. In light of this uncertainty, consideration of Hegler's argument is warranted.

2. Structural Error Analysis

The Supreme Court "has recognized that most constitutional errors can be harmless." Fulminante, 499 U.S. at 306-07, 111 S.Ct. at 1262-63 (listing examples of trial error). Only...