Marino v. Vasquez

• Decision Date: 09 March 1987
• Docket Number: Nos. 86-6244,86-6333,s. 86-6244
• Citation: 812 F.2d 499
• Parties: 22 Fed. R. Evid. Serv. 1209 Salvatore Joseph MARINO, Petitioner-Appellee, v. Dan VASQUEZ, Warden, et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 499

812 F.2d 499

22 Fed. R. Evid. Serv. 1209

Salvatore Joseph MARINO, Petitioner-Appellee, v. Dan VASQUEZ, Warden, et al., Respondents-Appellants.

Nos. 86-6244, 86-6333.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 7, 1987.

Decided March 9, 1987.

Thomas V. Johnston, Encino, Cal., and James McKittrick, Eureka, Cal., for the petitioner-appellee.

Patrick T. Brooks, Los Angeles, Cal., for the respondents-appellants.

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

Before FERGUSON, BOOCHEVER and WIGGINS, Circuit Judges.

FERGUSON, Circuit Judge:

This is an appeal by the State of California ("State") from a judgment of the Central District of California granting a conditional writ of habeas corpus to the petitioner, Salvatore Marino. The district court granted relief on the grounds that jury misconduct violated Marino's right to a fair trial under the Sixth and Fourteenth Amendments. The State also appeals the district court's order granting Marino bail pending the State's appeal. We affirm the district court order granting conditional habeas relief as to Marino's convictions for murder and attempted murder, and the order setting conditions for release on bail. We reverse the district court's grant of habeas corpus relief as to the petitioner's conviction for felony false imprisonment.

I.

In 1982, Marino was convicted of the second-degree murder of Peter Catelli, the attempted murder of Orlando Catelli, and felony false imprisonment of Peter Catelli. An earlier trial, in 1980, had resulted in a hung jury. The charges arose out of a series of incidents that occurred in the fall of 1977, involving four co-defendants and three separate trials.

In September 1977, Peter Catelli visited the petitioner's father, Angelo Marino ("Angelo"), seeking a job at his company, the California Cheese Company. Angelo told him that there were no positions open and Catelli became angry and abusive. In the first week of October 1977, Catelli wrote an extortion letter to Angelo demanding $100,000 on pain of death. Angelo contacted his friend Joseph Piazza for help in dealing with the attempted extortion. Piazza then telephoned another associate, Thomas Napolitano, in order to arrange a meeting with Peter Catelli and his father, Orlando Catelli.

On November 10, 1977, Orlando Catelli met with Angelo, Piazza, and Napolitano to discuss the extortion letter. Catelli apologized for his son's conduct, but said that he did not know his whereabouts. On November 11, 1977, the four men met again at Angelo's place of business. During the course of this meeting Peter Catelli made a series of telephone calls to the office, during one of which he demanded that Angelo meet him at a shopping center with the $100,000. Napolitano and Orlando Catelli went to the meeting place, but Peter Catelli was not there, so they returned to Angelo's office. In the course of a subsequent call, Orlando Catelli told Peter that he should come to the office to straighten things out, and read to him Piazza's instructions that he, Orlando Catelli, and his wife, Peter's mother, were to be killed. Orlando understood this to be a ruse to lure Peter to the office. Napolitano then spoke to Peter Catelli and told him that he would pick him up and bring him to the office. Marino was present in the office at this time and was introduced to Orlando Catelli. About an hour later, Napolitano returned with Peter Catelli. Angelo pointed a gun at Catelli, and Marino, who was also armed, searched him. Piazza also had a gun in his hand.

Up to this point the accounts of what happened given by those present are in substantial agreement. From this point on, the testimony of Orlando diverges in places from that of Angelo, Napolitano, and Marino. It is clear, however, that Peter Catelli was questioned about the extortion attempt and that Marino beat him. During the course of the beating, the chair on which Peter Catelli was sitting broke, and Catelli landed on the floor. Angelo told Peter that they were going to kill his father, and Piazza and Napolitano took the elder Catelli into an adjoining office. As they left the office, Peter was sitting on the floor, leaning against the wall of the office, and Marino was standing behind a desk. Piazza told Orlando Catelli that their threat was merely an attempt to scare his son, and then fired his gun into a box containing cheese. Orlando cried out as if in response. Almost immediately Orlando Catelli heard another shot from the adjoining office. Angelo then came in and said that Peter Catelli was dead, that he had gone for the gun, that Marino had shot him, and that it was an accident. Orlando Catelli went into the office and saw his son, dead on the floor, with Marino standing near him. Orlando then received a blow to his head and a gunshot wound which caused him to fall forward onto his son's body, although again the accounts of how this happened were disputed at trial. Orlando feigned death, although he states that he did not at any time lose consciousness. Orlando was placed in the trunk of a car, with the body of Peter Catelli and the car was driven away and abandoned.

Charges were filed against Marino, Angelo, Piazza, and Napolitano. Marino was held in custody between October 12 and December 23, 1977, when he was released on bail of $500,000. A series of trials and retrials ensued. In the first trial, in July 1980, Angelo and Piazza were tried and convicted of various felony offenses, but the trial judge subsequently granted the defendant's motion for a new trial. Marino and Napolitano were tried in a second, and separate, proceeding. The jury acquitted Marino of some of the charges against him, and were unable to reach a verdict on the other counts. They acquitted Napolitano of all charges. Marino's bail was reduced to $450,000 after the second trial resulted in a mistrial because of the hung jury.

A third trial began in September 1981, with Marino, Angelo, and Piazza as co-defendants. The amended information charged in Count I that the three defendants committed the murder of Peter Catelli. In Count II Marino and Angelo were charged with the attempted murder of Orlando Catelli, and it was alleged that Marino inflicted great bodily injury upon the victim. Counts III and IV concerned only Angelo and Piazza. In Count V the three defendants were charged with felony false imprisonment of Orlando Catelli.

Angelo's case was severed, and the third trial then proceeded with Marino and Piazza as defendants. On April 19, 1982, after deliberating for nearly thirty days, a jury found Marino guilty of second-degree murder, attempted murder, and felony false imprisonment. During the course of the jury's deliberations, two incidents occurred that led Marino to move for a new trial on the basis of juror misconduct. One incident involved a juror's unauthorized use of a dictionary to define "malice," and the other concerned an out-of-court experiment conducted by another juror to test the accuracy of a defense witness's statement that a person would be incapable of firing a handgun held in a certain position.

The case was submitted to the jury on March 22, 1982. On April 7, 1982, the jurors reported to the court that they were deadlocked and that it was doubtful they would be able to reach verdicts in the case. The court, after interviewing each juror, ordered them to continue trying to reach verdicts. On April 8, 1982, juror Tracey Jones wrote a letter to the court indicating that another juror, Roger C. Jones (no relation), was not deliberating properly and that his refusal or inability to deliberate conscientiously was holding up the work of the jury. It appears that at this time Roger Jones was voting for a verdict of manslaughter on the murder charge and not guilty on the remaining counts.

In a subsequent declaration to the court, juror Roger Jones stated that prior to the final ballot the jury discussion had centered on whether Marino harbored malice, and he had stated at that time that the prosecution had not proven malice as defined in the court's instructions. During the final week of deliberations, another juror gave Roger Jones a dictionary definition of malice, handprinted on a piece of paper, which defined malice as "active or vindictive ill-will." The definition, which Roger Jones read, was different from that set forth in the court's instructions to the jury. ¹ Roger Jones, the holdout juror, further stated that he believed that he received the dictionary definition the day before he changed his vote to find Marino guilty on all other counts. The juror who supplied the additional definition confirms Roger Jones's account of what took place.

The second allegation of juror misconduct concerned an out-of-court experiment. The prosecution attempted during trial to establish that the victim, Peter Catelli, was shot in the back of the head at close range while sitting on the floor in a corner of the office in which the shooting occurred, the position in which he was last seen by his father. The defense contended that Catelli had come forward and reached for a gun lying on a credenza, whereupon Marino had shot him in self-defense. An expert witness called by the defense testified that had Catelli been in the corner, as the prosecution alleged, it would have been impossible for Marino to reach behind him and pull the trigger.

In a declaration to the court, juror Tracey Jones stated that during the trial, while visiting her ex-husband, she had experimented with a new handgun that he had just bought, to see if she could pull the trigger with the gun held in the relevant position. She stated that she could not pull the trigger and that her ex-husband said that it was because she was too weak. Holding the gun in the same position, her ex-husband repeatedly pulled the trigger. All the jurors subsequently performed a similar authorized experiment, using a plastic toy gun,...