Dickson v. Sullivan

• Decision Date: 13 June 1988
• Docket Number: No. 86-3696,86-3696
• Citation: 849 F.2d 403
• Parties: Donald DICKSON, Petitioner-Appellant, v. G.E. SULLIVAN, Superintendent, Oregon State Correctional Institution, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 403

849 F.2d 403

Donald DICKSON, Petitioner-Appellant, v. G.E. SULLIVAN, Superintendent, Oregon State Correctional

Institution, Respondent-Appellee.

No. 86-3696.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 8, 1987.

Decided June 13, 1988.

Steven T. Wax, Federal Public Defender, Portland, Or., for petitioner-appellant.

David L. Kramer, Asst. Atty. Gen., Salem, Or., for respondent-appellee.

Appeal from the United States District Court for the District of Oregon.

Before WRIGHT, WALLACE and PREGERSON, Circuit Judges.

WALLACE, Circuit Judge:

Dickson, a convicted murderer, appeals the judgment of the district court denying his writ of habeas corpus. Dickson argues (1) that the trial judge's finding that the jury's exposure to extraneous information was limited to a single statement by a deputy sheriff is clearly erroneous, and (2) that the State of Oregon failed to prove that receipt by state jurors of extrinsic evidence was harmless beyond a reasonable doubt. We have jurisdiction pursuant to 28 U.S.C. Sec. 2253. Because our review of the record convinces us that there is a reasonable possibility that the extrajudicial statement influenced the state court verdict, we reverse the judgment. Consequently, it is unnecessary for us to consider whether the trial judge erred in failing to find that other misconduct occurred.

I

On November 7, 1981, Anderson, owner of the Alibi Tavern in Grants Pass, Oregon, was murdered and robbed while working at the saloon. A police examination and autopsy revealed that repeated blows from a pool cue and other objects caused Anderson's death. There were no eyewitnesses to the murder. The state based its case linking Dickson to the murder principally on testimony that Dickson was at the saloon both before and after the murder, on footprints matching Dickson's shoes found in the blood on the saloon floor, and on the testimony of a fellow inmate who stated that Dickson had admitted while in jail that he killed Anderson. The state also introduced evidence that Dickson had in his possession money approximating the amount that was taken from the saloon on the night of the murder and that Dickson's fingerprints were found on various items at the scene.

Dickson responded to this evidence by testifying that he had been in the tavern before the murder and that he returned later in the evening to find Anderson dead. He admitted checking the cash register for money but testified that the cash register was empty. He also admitted that he took the victim's car keys and stole his car. As for the money he possessed, Dickson testified that a woman with whom he spent an evening had given him approximately $100 and that he had stolen an additional $200 from her. Other evidence introduced at trial established that Dickson had previously been convicted for credit card fraud and was on temporary leave from an Oregon state prison.

After one and a half days of deliberations, the jury returned a unanimous verdict of guilty. Two days after the jury verdict, Dickson's lawyer reported to the trial court that one of the jurors had received a newspaper clipping during trial regarding an alleged past conviction of Dickson. The trial court found that an evidentiary hearing was warranted to determine whether any of the jurors had considered extraneous information in reaching the verdict. After questioning several jurors under oath over a period of four days, the trial judge found that the allegation concerning the newspaper clipping was unsubstantiated. However, he found that a deputy sheriff responsible for escorting the jurors to and from the courtroom had made a statement to two jurors to the effect that Dickson had "done something like this before." He further found that the statement was made between two and six days before the jury retired for deliberations and that neither of the jurors had discussed the statement among themselves or with other members of the jury. He also found that the two jurors had followed his jury instructions limiting the use of prior convictions and directing them to make their decision exclusively on the trial evidence. The trial judge concluded that the remark had not influenced the jury's deliberations, and denied Dickson's motion for a new trial.

On appeal, the Oregon Court of Appeals found that the deputy sheriff's comment violated Dickson's sixth amendment right to confrontation, but held that the error did not warrant reversal of Dickson's conviction. State v. Dickson, 63 Or.App. 458, 665 P.2d 352, 355-56 (1983). The Oregon Supreme Court denied Dickson's petition for review. State v. Dickson, 295 Or. 541, 668 P.2d 384 (1983). Having exhausted his state remedies, Dickson filed a pro se petition for writ of habeas corpus in the district court pursuant to 28 U.S.C. Sec. 2254. The district court, stating that it was required to give the state trial court's conclusion "substantial weight," upheld the trial judge's determination that the extrinsic evidence complained of did not affect the verdict. The court therefore granted the state's motion to dismiss Dickson's petition and denied the writ. Dickson timely appealed.

II

We review the district court's denial of Dickson's habeas corpus petition de novo. Bayramoglu v. Estelle, 806 F.2d 880, 886-87 (9th Cir.1986) (Bayramoglu ). The state court's findings of historical facts are entitled to a presumption of correctness under 28 U.S.C. Sec. 2254(d). Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir.1987) (Marino ). However, its conclusion that the constitutional error was harmless does not constitute a factual finding entitled to a presumption of correctness under section 2254(d). The question whether the deputy's remarks prejudiced Dickson requires the application of a legal standard to historical facts. Id. It is thus a mixed question of law and fact reviewable de novo. Id.

A defendant is entitled to a new trial when the jury obtains or uses evidence that has not been introduced during trial if there is "a reasonable possibility that the extrinsic material could have affected the verdict." Id. (emphasis in original), quoting United States v. Vasquez, 597 F.2d 192, 193 (9th Cir.1979) (Vasquez ); see also Gibson v. Clanen, 633 F.2d 851, 855 (9th Cir.1980) (Gibson ), cert. denied, 450 U.S. 1035, 101 S.Ct. 1749, 68 L.Ed.2d 231 (1981). This test is applicable to our collateral review of state court judgments, as well as to cases directly appealed to this court. Marino, 812 F.2d at 504. The state bears the burden of proving that constitutional errors are harmless beyond a reasonable doubt. Id.; see United States v. Littlefield, 752 F.2d 1429, 1432 (9th Cir.1985) (Littlefield ). Because the trial judge has a unique opportunity to observe the jurors during trial, to hear the defenses asserted, and to hear the evidence, the trial "judge's conclusion about the effect of the alleged ... misconduct deserves substantial weight." United States v. Bagnariol, 665 F.2d 877, 885 (9th Cir.1981) (per curiam) (Bagnariol ), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). Our review, however, is an independent one and we must consider the entire record in determining whether the state has met its burden of demonstrating that extrinsic evidence did not contribute to the verdict. See id.

Dickson claims here, as he did in his state appeal, that a reasonable possibility exists that the deputy sheriff's statement to two of the jurors affected the verdict. When a jury is exposed to facts that have not been introduced into evidence, a defendant has effectively lost the rights of confrontation, cross-examination, and the assistance of counsel with regard to the extraneous information. Marino, 812 F.2d at 505; Gibson, 633 F.2d at 854. In the present case, both parties agree that the exposure of the two jurors to the deputy sheriff's remarks violated Dickson's constitutional rights. The parties disagree, however, about whether the state met its burden of proving that the constitutional error was harmless beyond a reasonable doubt.

The trial court concluded that the jurors followed instructions directing the jury to base its decision solely on evidence admitted at trial. However, the question whether the introduction of the extrinsic evidence in this case was prejudicial is not a question of historical fact entitled to deference on appeal, but a mixed question of law and fact reviewed de novo. Marino, 812 F.2d at 504. Our cases have emphasized that the question of prejudice is an objective, rather than a subjective, one. Thus, "[a] trial judge should not investigate the subjective effects of any [extrinsic evidence] upon the jurors." Vasquez, 597 F.2d at 194; Bagnariol, 665 F.2d at 884-85. Rather, the trial court's factual inquiry is limited to determining the extent, if at all, to which the jurors saw or discussed the extrinsic evidence. Vasquez, 579 F.2d at 194. Thus, we give no deference to the trial judge's conclusion that the jurors in this case in fact obeyed the jury instructions, but must inquire anew whether the state satisfied its burden of proving that the exposure to the evidence was harmless beyond a reasonable doubt. See Marino, 812 F.2d at 504.

We have previously identified several factors relevant to determining whether the prosecution has successfully rebutted the presumption of prejudice arising from the introduction of extraneous evidence. These are:

(1) whether the material was actually received, and if so, how; (2) the length of time it was available to the jury; (3) the extent to which the juror discussed and considered it; (4) whether the material was introduced before a verdict was reached, and if so at what point in the deliberations; and (5) any other matters which may bear on the issue of the reasonable possibility of whether the extrinsic material affected the verdict.

Marino, 812 F.2d at 506, citing Bayramoglu, 806 F.2d at 887. Because "[t]he ultimate question is 'whether...