Turner v. Marshall

Citation63 F.3d 807
Decision Date02 August 1995
Docket NumberNo. 93-55477,93-55477
Parties95 Cal. Daily Op. Serv. 6059, 95 Daily Journal D.A.R. 10,394 Robert TURNER, Petitioner-Appellant, v. Charles D. MARSHALL, Warden, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Richard D. Cleary, Los Angeles, CA, for petitioner-appellant.

Robert Turner, Corcoran, CA, in pro. per.

David F. Glassman, Deputy Atty. Gen., Los Angeles, CA, for respondent-appellee.

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

Before: PREGERSON, POOLE and D.W. NELSON, Circuit Judges.

D.W. NELSON, Circuit Judge:

Petitioner-Appellant Robert Turner appeals the district court's denial of his petition for a writ of habeas corpus arising from his state court conviction for felony murder, robbery, burglary, and use of a dangerous weapon in committing a felony. Turner alleges that he was convicted in violation of his federal constitutional rights because (1) the prosecutor impermissibly used peremptory challenges to remove African-Americans from the petit jury on account of their race, in violation of the Equal Protection Clause of the Fourteenth Amendment; (2) a readback of testimony outside the presence of Turner and his counsel violated his Sixth Amendment rights; (3) there was insufficient evidence to support a felony murder conviction; (4) the prosecutor improperly commented on the attorney-client privilege; (5) prosecutorial misconduct infringed on Turner's right to due process of law; (6) the court improperly failed to instruct on the lesser included offense of theft; (7) the court discouraged the jury from requesting a readback of testimony; and (8) the court erred in using the California Jury Instruction on consciousness of guilt.

We have jurisdiction under 28 U.S.C. Sec. 1291. We remand to the district court for an evidentiary hearing on Turner's claims of race-based peremptory challenges and violation of his Sixth Amendment right to be present at the readback of testimony. We

affirm the district court's denial of the petition on the remaining claims
BACKGROUND

On the evening of May 24, 1988, Roy Hunt was murdered in the living room of his home. The perpetrator had used a marble figurine to strike Hunt in the head multiple times. When the police found Hunt's body the next day, his watch, ring, wallet, television, VCR, and a candlestick were missing. The police found a blood spot among video cassette cases some distance from the body, as well as several cigarette butts, but no fingerprints.

In the early hours of June 4, 1988, Hunt's house was burglarized again. That morning, a police officer saw Turner driving Hunt's car and promptly arrested him. In the car, the police found several of Hunt's belongings and a plastic container which held two of Hunt's teeth. In Turner's pocket, they found Hunt's ring. In later statements, Turner admitted that he had assisted in the June 4 burglary, but denied any involvement in the May 24 murder and robbery of Hunt.

At trial, expert testimony relating to tests on the blood found in Hunt's house revealed that it was consistent with Turner's blood, and that only 0.13 percent of the population have blood consistent with the sample. The criminalist also testified that saliva found on the cigarette butts in Hunt's home was consistent with Turner's saliva. In addition, friends of Hunt testified that he always wore the ring, and that he had been wearing it on the evening of the murder.

Turner testified that he had gone to Hunt's house on June 4 at the direction of Donna Stephens, his brother's girlfriend. He helped load items from the house into a car (Hunt's), and secretly took some small items, including the gold ring, for himself. He claimed that he was on his way to sell the items when he was apprehended by the police. However, Stephens testified that she had no involvement in either incident. In addition, several witnesses testified that prior to trial, Turner had given statements inconsistent with his testimony.

The jury convicted Turner of first degree (felony) murder, Cal.Penal Code Sec. 189; robbery, id. Sec. 211; burglary, id. Sec. 459; and use of a dangerous weapon in committing a felony, id. Sec. 12022(d). He was sentenced to life imprisonment without the possibility of parole. The California Court of Appeal denied his appeal, in which he presented the same issues presented to this court. After the California Supreme Court denied review, Turner filed a petition for a writ of habeas corpus in federal district court, which was denied.

STANDARD OF REVIEW

This court reviews a denial of a petition for a writ of habeas corpus de novo. Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir.1994).

DISCUSSION
I. The Batson Claim

Turner, who is African-American, argues that under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the trial court erroneously determined that he had failed to make a prima facie case that the prosecution had engaged in discriminatory use of peremptory challenges, in violation of the Equal Protection Clause of the Fourteenth Amendment. 1 During voir dire, the government used five out of nine peremptory challenges to exclude African-Americans (three men and two women) from the jury. For his part, Turner's counsel employed 19 peremptory challenges, excluding two African-American men. At the time of Turner's Batson motion, four African-American women remained on the jury. The trial judge, noting that the prosecutor had also excluded white venirepersons, stated that he saw no "pattern of individualized discrimination." Acknowledging the presence of nine members

of racial minority groups on the jury at that time, the judge declined to inquire into the prosecutor's motives for her peremptory challenges

Under Batson, a prosecutor's racially discriminatory use of peremptory challenges constitutes a violation of equal protection. 476 U.S. at 97, 106 S.Ct. at 1723. Initially, a defendant must establish a prima facie case that (1) the defendant is a member of a cognizable racial group; (2) the prosecution has removed members of such a racial group; and (3) circumstances raise an inference that the challenges were motivated by race. Id. at 96, 106 S.Ct. at 1723; United States v. Bishop, 959 F.2d 820, 824 n. 6 (9th Cir.1992); United States v. Chinchilla, 874 F.2d 695, 697 (9th Cir.1989). At that point, the burden shifts to the government to articulate a race-neutral basis for the peremptory challenges. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Chinchilla, 874 F.2d at 697.

A. Cognizable Group

Because African-American women remained on the jury, Turner focuses on the exclusion of black men from the jury as the basis for a Batson violation. However, neither the Supreme Court nor the Ninth Circuit has recognized that the combination of race and gender, such as "black males," may establish a cognizable group for Batson purposes. See United States v. Changco, 1 F.3d 837, 839 (9th Cir.) (declining to address whether "minority women" are an identifiable class), cert. denied, --- U.S. ----, 114 S.Ct. 619, 126 L.Ed.2d 583 (1993). In fact, the two circuits that have addressed this issue have held that a defendant may not seek Batson relief on the basis of exclusion of "black men" or "black women." See United States v. Nichols, 937 F.2d 1257, 1262 (7th Cir.1991), cert. denied, 502 U.S. 1080, 112 S.Ct. 989, 117 L.Ed.2d 151 (1992); United States v. Dennis, 804 F.2d 1208, 1210 (11th Cir.1986), cert. denied, 481 U.S. 1037, 107 S.Ct. 1973, 95 L.Ed.2d 814 (1987).

Although the issue of whether African-American men could constitute a Batson class likely is worthy of consideration in light of recent holdings that gender as well as race is an impermissible basis for peremptory challenges, see, J.E.B. v. Alabama ex rel. T.B., --- U.S. ----, ----, 114 S.Ct. 1419, 1426, 128 L.Ed.2d 89 (1994); United States v. DeGross, 960 F.2d 1433, 1439 (9th Cir.1992), we decline to consider this issue because any new rule defining what constitutes a "cognizable group" could not be applied to Turner's case. See Teague v. Lane, 489 U.S. 288, 299-300, 316, 109 S.Ct. 1060, 1069-1070, 1078, 103 L.Ed.2d 334 (1989); Echlin v. LeCureux, 995 F.2d 1344, 1351 (6th Cir.1993) (finding that Teague precludes application of a new rule extending Batson to allow white defendants to challenge the exclusion of white jurors), cert. denied, --- U.S. ----, 114 S.Ct. 552, 126 L.Ed.2d 453 (1993). Accordingly, we limit our inquiry to whether Turner has made a prima facie case of impermissible exclusion of African-American jurors as a class, with no reference to gender. See Changco, 1 F.3d at 839.

B. Inference of Discrimination

Focusing on exclusion of African-Americans as a group, we find that Turner has satisfied the first two requirements of the prima facie case. The key issue, therefore, is whether Turner has shown that the facts and circumstances "raise an inference" of exclusion on the basis of race so as to require inquiry into the prosecutor's motives. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. In assessing this issue, we note that "[t]here is no magic number of challenged jurors which shifts the burden to the government to provide a neutral explanation for its actions." Chinchilla, 874 F.2d at 698. "[T]he combination of circumstances taken as a whole must be considered." Id. We find that Turner has identified circumstances which raise an inference of discrimination.

First, Turner offered the statistical fact that the prosecutor had used peremptory challenges to exclude five African-Americans out of a possible nine African-American venirepersons. A pattern of exclusion of minority venirepersons provides support for an inference of discrimination. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; United States v. Battle, 836 F.2d 1084, 1085 (8th Cir.1987). We have considered Batson arguments in several other cases in which the prosecution

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