Donovan v. Davis

• Decision Date: 24 June 1977
• Docket Number: No. 76-2251,76-2251
• Citation: 558 F.2d 201
• Parties: Joseph Howard DONOVAN, Appellant, v. Jack F. DAVIS, Director, Virginia State Department of Corrections, and A. T. Robinson, Superintendent, Powhatan Correctional Center, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 201

558 F.2d 201

Joseph Howard DONOVAN, Appellant, v. Jack F. DAVIS, Director, Virginia State Department of Corrections, and A. T. Robinson, Superintendent Powhatan Correctional Center, Appellees.

No. 76-2251.

United States Court of Appeals Fourth Circuit.

Argued March 16, 1977.

Decided June 24, 1977.

Edward L. Hogshire, Washington, D. C. (Paxson, Smith, Boyd, Gilliam & Gouldman, John C. Lowe, Lowe & Gordon, Charlottesville, Va., on brief), for appellant.

K. Marshall Cook, Asst. Atty. Gen., Richmond, Va. (Anthony F. Troy, Chief Deputy Atty. Gen., and Wilburn C. Dibling, Jr., Asst. Atty. Gen., Richmond, Va., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and WINTER, Circuit Judge.

WINTER, Circuit Judge:

Joseph H. Donovan appeals from an order of the district court denying him a writ of habeas corpus to set aside his conviction on a charge of attempted rape. Because we conclude that Donovan was denied his right to trial by an impartial jury, we reverse and direct that the writ be issued unless the state affords him a new trial.

I.

On March 6, 1972, Donovan was tried before a jury in the Circuit Court of Rockingham County, Virginia on a charge of unauthorized use of a motor vehicle alleged to have occurred on or about November 14, 1971. The jury returned a verdict of not guilty after full trial. One week later, Donovan was again brought to trial in the same court on a charge of attempted rape of his first cousin which was alleged to have taken place on October 27, 1971.

Immediately prior to the second trial, defense counsel moved to quash the jury venire. The motion was based upon the fact that "several" panel members had previously served on the jury which acquitted Donovan of the automobile charge. The circuit court denied this motion, although it stated that it would safeguard Donovan's rights by admonishing the jury that their participation in another case should not prejudice them against the accused.

When the names of prospective jurors were called, the trial judge informed them that Donovan had recently been tried for another offense, and that some of their number had served as jurors in that case. The panel was then asked whether any individual member was influenced by exposure to the earlier trial. None of the panel members responded, and the venire was turned over to defense counsel for further challenges. Defense counsel repeated his challenge to jurors who had sat in the previous case, but he was again overruled.

Of the twelve jurors selected, seven had served in the automobile case. Before the jury retired to consider its verdict in the second case, the members were admonished to wipe from their recollections any impressions that they might have gotten from the first trial which were unfavorable to Donovan and to decide his case on the evidence adduced on the charge of attempted rape. The jury returned a verdict of guilty and Donovan was sentenced to a prison term of ten years.

Following his conviction, Donovan sought a writ of error from the Supreme Court of Virginia, but the writ was denied. Later, he filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Virginia. The petition repeated Donovan's objection to the composition of the jury which convicted him. The district court denied relief without a hearing and Donovan appeals.

II.

Donovan had a federal constitutional right to an impartial jury:

In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, "indifferent" jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process.

Groppi v. Wisconsin, 400 U.S. 505, 509, 91 S.Ct. 490, 492, 27 L.Ed.2d 571 (1971); Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

Our analysis of the issues and the evidence presented at the two trials leads us to conclude that that right was violated when seven persons who served as jurors at the first trial also served as jurors at the second.

The first trial was on the charge of unauthorized use of a motor vehicle. The vehicle, a Dodge truck, belonged to the employer of Donovan's father who operated a garage and a used car lot. After the car lot owner testified that he had not authorized Donovan to use the truck and had permitted him to use another car on only one occasion, there was testimony from a police officer to the effect that the defendant had been observed driving vehicles on and off the lot on a number of occasions. Donovan testified in his own defense. He stated that he had used cars on the lot on a number of occasions and that he had used the Dodge truck "to take the girls home." On other occasions, he had used other vehicles to take his girlfriend riding and to "chase" the wife of his father's employer on New Year's Eve. The employer conceded that he, Donovan and another male had taken a trip with three females whose last names the employer could not remember and a female witness testified that she was a member of the party.

The second trial was, of course, on the charge of attempted rape. From the evidence, the sole issue for the jury was a determination of credibility between Donovan and the prosecutrix. The prosecutrix testified that Donovan came to her home after her mother had left for work, that he had pursued her to her bedroom, and that he attacked her while she was dressing in preparation for going to school. Donovan disputed this version of the facts, testifying that the prosecutrix enticed him to her bedroom and consented to his sexual advances. Since there was no witness to the event, the testimony of both was uncorroborated.

On these facts, we think it more likely than not that, consciously or unconsciously, the jurors, in making the credibility determination which was the essential issue in the second trial, were influenced by the evidence that they had heard at the first. The jurors who heard the evidence in the first trial could well have concluded that Donovan had an active interest in pursuing females. Certainly, it would have been far easier for members of the jury to believe the prosecutrix and to disbelieve the defendant if they had the impression that Donovan was a putative Don Juan. We think that the jury could well have concluded that, from the evidence that was presented at the first trial, this was Donovan's inclination, and therefore we conclude that there was a substantial likelihood that the seven jurors who sat in both trials were not indifferent in appraising the evidence at the second.

We disagree with the Commonwealth's argument that the voir dire and the instruction given to the jury before it retired to consider its verdict cured any prejudice arising from the joint service of the seven jurors. The voir dire was conducted before any evidence was presented at the second trial and the members of that venire were not told what issues the case would present. The members could quite honestly remain silent in response to a question about whether they would be influenced in...