Owen v. Duckworth, 83-1389

• Decision Date: 08 February 1984
• Docket Number: No. 83-1389,83-1389
• Parties: 15 Fed. R. Evid. Serv. 75 Richard Lee OWEN, Petitioner-Appellant, v. Jack DUCKWORTH, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 643

727 F.2d 643

15 Fed. R. Evid. Serv. 75

Richard Lee OWEN, Petitioner-Appellant, v. Jack DUCKWORTH, Respondent-Appellee.

No. 83-1389.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 3, 1984.

Decided Feb. 8, 1984.

David E. Vandercoy, Valparaiso, Ind., for petitioner-appellant.

Kermit R. Hilles, Deputy Atty. Gen., Indianapolis, Ind., for respondent-appellee.

Before WOOD, ESCHBACH and POSNER, Circuit Judges.

PER CURIAM.

In his second appeal to this court, the petitioner, Richard Lee Owen, seeks review of the district court's denial of his petition for a writ of habeas corpus. The issue on appeal is whether Owen was denied his constitutional right to an impartial jury as a result of a threat made to one juror and communicated by that juror to other members of the jury. Noting jurisdiction under 28 U.S.C. Sec. 2253; we hold that the district court's finding of no juror prejudice is clearly erroneous and, accordingly, we reverse the judgment of the district court.

I.

Richard Lee Owen was tried and convicted by an Indiana trial court in 1976 on one charge of attempting to commit a felony while armed. During the first week of the two week trial, Juror Mary A. Tolley received an anonymous phone call. The caller told Juror Tolley: "God damn you, honky. You better not testify. We have a contract out on you. We are going to get you. We are going to get you." Juror Tolley reported this call to the trial court the following day. The trial court immediately held an in camera hearing at which both Owen, acting pro se, and the prosecutor were present.

At this in camera session, Juror Tolley stated that the call had frightened her, but in response to the court's questioning she asserted that "I think I'm going to continue and be fair minded." At this point, the trial court suggested that the call could have been made either on Owen's behalf or "on behalf of the State intending to prejudice you against the defendant." Juror Tolley agreed. The trial court again questioned Juror Tolley concerning her ability to continue as an impartial juror. Juror Tolley responded that she could be fair minded. After instructing Juror Tolley not to discuss the threat with the other jurors, the trial court found that Juror Tolley could continue as an impartial juror and denied Owen's motion for a mistrial. ¹

After the trial, Owen learned that Juror Tolley, contrary to the trial court's instructions, might have informed other jurors of the threat and discussed the threat during the jury's deliberations. ² Owen filed a motion to correct errors in which he raised the issue of possible juror bias. The state trial court held a hearing on Owen's motion, but terminated the hearing when it appeared that the evidence being presented might invade the province of the jury's deliberations. The trial court ultimately denied Owen's motion. Owen again raised the possible prejudice of the eleven jurors (other than Juror Tolley) on direct appeal to the Indiana Supreme Court. That court, however, unanimously affirmed Owen's conviction. Owen v. State, 269 Ind. 513, 381 N.E.2d 1235 (1978).

Owen filed a petition for a writ of habeas corpus in federal district court on April 19, 1979. In that petition, Owen raised seven issues. The district court denied the petition. On appeal, Owen contested the district court's judgment on two issues. Without oral argument, we affirmed the district court's denial of the petition on one of the two grounds raised. Owen v. Duckworth, 636 F.2d 1222, unpublished order (7th Cir.1980). The second issue, concerning possible juror prejudice, was set on the calendar for oral argument.

In a second unpublished order following oral argument, we addressed the juror prejudice issue. Noting that the state trial court had terminated the hearing on Owen's motion to correct errors before Owen had presented all of his evidence, we held that the state court's post-conviction proceeding "was not adequate to afford a full and fair hearing" on the issue of juror prejudice and that "the material facts were not adequately developed" in the state court. Owen v. Duckworth, 636 F.2d 1222, unpublished order at 9 (7th Cir.1980) 645 F.2d 74 (citing Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963)) (hereinafter "the December Order"). Consequently, we remanded the case to the district court for an evidentiary hearing. Id. 636 F.2d 1222, unpublished order at 9-10. See 28 U.S.C. Sec. 2254(d)(2), (3).

The respondent sought review of our December Order in the Supreme Court. Following that Court's denial of certiorari, see 452 U.S. 951, 101 S.Ct. 3096, 69 L.Ed.2d 963 (1981), the district court assigned the case to a United States Magistrate for the purpose of conducting the evidentiary hearing ordered by this court. The hearing was held on March 30 and April 20, 1982, at which time the magistrate heard testimony from all of the jurors except Juror Tolley, who was unavailable because of illness. Based on the testimony given, the magistrate found the following facts:

First, Tolley or another juror mentioned Tolley's nervous condition and the fact that the police were accompanying her to and from the courthouse to a group of jurors in the jury room during the first week of the trial. Second, other than some very vague references, her condition and circumstances were not mentioned or discussed again. Third, although some jurors testified to a suspicious phone call, none of them was sure who told them of the call. It is possible that a few of these jurors may have even assumed it was a threatening phone call which upset Tolley, as the testimony of both [Juror] Osborn and [Juror] Rockwell illustrates that each did some assuming to help explain Tolley's nervousness. Fourth, at no time during deliberations were the subjects of Tolley's condition, her police escort, or the phone call discussed by any of the jurors. Lastly, none of the eleven jurors who testified was aware of the substance of the call, the identity of the person originating the call, or attributed the same to Owen or another person connected with him.

The magistrate then concluded that, while the petitioner had "shown evidence of outside communication received by a juror during the course of trial," "the state ... met its heavy burden of showing that the communication was harmless to the defendant." Over the objections of the petitioner, the district court adopted the magistrate's Report and Recommendation in whole and denied the petition for a writ of habeas corpus. This appeal followed.

II.

It is unquestioned that the Due Process Clause of the Fourteenth Amendment extends to state court defendants the right to be tried by an impartial jury. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 551, 96 S.Ct. 2791, 2799, 49 L.Ed.2d 683 (1976); Ristaino v. Ross, 424 U.S. 589, 595 & n. 6, 96 S.Ct. 1017, 1020 & n. 6, 47 L.Ed.2d 258 (1976); Duncan v. Louisiana, 391 U.S 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Thus, any contact between third parties and jurors regarding an ongoing trial, outside the trial forum, raises serious questions concerning the continued impartiality of the jurors. Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907) (Holmes, J.); United States v. Howard, 506 F.2d 865, 866 (5th Cir.1975). While serious, extra-judicial contacts will not always rise to the level of prejudicial error; some may be harmless. See, e.g., Rushen v. Spain, --- U.S. ----, 104 S.Ct. 453, 455-56, 78 L.Ed.2d 267 (1983) (per curiam); Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982); Bruce v. Duckworth, 659 F.2d 776, 781-82 (7th Cir.1981), cert. denied, 455 U.S. 955, 102 S.Ct. 1464, 71 L.Ed.2d 673 (1982); United States v. Fleming, 594 F.2d 598, 608 (7th Cir.), cert. denied, 442 U.S. 931, 99 S.Ct. 2863, 61 L.Ed.2d 299 (1979).

Post-conviction proceedings are generally adequate to determine whether a jury's impartiality has been affected by an extra-judicial contact. See, e.g., Rushen v. Spain, 104 S.Ct. at 456; Smith v. Phillips, 455 U.S. at 218-19 & n. 8, 102 S.Ct. at 946-47 & n. 8. Where, as here, the state's post-conviction proceedings prove inadequate, the federal district court must conduct an evidentiary hearing. 28 U.S.C. Sec. 2254(d). At this hearing, the defendant has the burden of proving an outside contact. Once that contact is established, "the jury is, for obvious reasons, deemed presumptively prejudic[ed] ...." Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954). While this presumption is rebuttable, "the burden rests heavily upon the Government to establish ... that such contact with the juror was harmless to the defendant." Id.

A determination of jury prejudice is complicated in the federal courts by the proscription against questioning jurors directly about the effect of the outside contact on their deliberations. Fed.R.Evid. 606(b); United States v. Bagnariol, 665 F.2d 877, 884-85 (9th Cir.1981), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). Rather than question the jurors directly, a district court must make findings of fact at two separate levels. First, the district court must find the basic, or subsidiary, facts--e.g., the nature, content, and extent of the extra-judicial contact. Based on its findings of subsidiary facts, the district court must then make the ultimate factual determination: whether the contact likely affected the juror's impartiality. ³ United States v. Vasquez, 597 F.2d 192, 194 (9th Cir.1979); United States v. Howard, 506 F.2d 865, 868-69 (5th Cir.1975).

We review the district court's findings of fact under the clearly erroneous standard. However, because the ultimate factual determination of impartiality depends on inferences of effect drawn from the subsidiary facts, we believe a more critical review of the district court's ultimate finding of fact is appropriate in this context than in other situations. See ...