White v. Smith, s. 91-6095

Citation984 F.2d 163
Decision Date24 February 1993
Docket Number91-6096,91-6097,Nos. 91-6095,s. 91-6095
PartiesJames M. WHITE (91-6096/6097), Petitioner-Appellee, Cross-Appellant, v. Stephen T. SMITH (91-6095), Respondent-Appellant, Cross-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Trisha Zeller James (argued and briefed), James & James, Louisville, KY, for petitioner-appellee cross-appellant.

David A. Sexton, (argued), Pamela J. Murphy, Attys. Gen. (briefed), Chris Gorman, Atty. Gen., Frankfort, KY, for respondent-appellant cross-appellee.

James Michael White, pro se.

Before: KEITH, NELSON, and RYAN; Circuit Judges.

RYAN, Circuit Judge.

The Commonwealth of Kentucky, on behalf of Warden Stephen T. Smith, appeals from the district court's grant of a writ of habeas corpus to James M. White. The district court determined that a Kentucky trial court had denied White his right under the Sixth and Fourteenth Amendments to an impartial jury by allowing the jury to render a verdict after White's mother spoke to jurors in the courtroom before they deliberated. White cross-appeals the district court's modification of its writ and its denial of habeas relief, based on White's other assignments of error.

For the reasons stated herein, we shall reverse the district court's grant of a writ of habeas corpus to White, and affirm the district court's denial of habeas relief in all other respects.

I.

White argues that his conviction in Christian County, Kentucky, for second-degree robbery and for being a persistent felony offender (PFO) was constitutionally defective. The convictions arose from the robbery of the Delta Market in Christian County.

At trial, the jury convicted White of robbery in the second degree. Subsequently, the PFO charge was submitted to the jury. Before retiring to deliberate on the PFO charge and sentencing, White's mother, who was present as a spectator in the courtroom, said to the jurors, "I will pray for you." The jury retired to the jury room, but soon returned to the courtroom. The foreman of the jury and the court then engaged in the following colloquy:

JUROR: Before we started just a moment ago Mrs. White came up and made a few statements. It made a few of the jurors nervous and they were worried about reprisals or something and they are nervous about this.

THE COURT: What were the statements?

JUROR: She said she would pray for everyone. Nothing bad or anything but she made some of the ladies nervous. It worried them a little bit.

THE COURT: Well, I am sorry that that happened and I will take Maime [sic] White at her word. She is known to this court and a very respected lady and I assume she meant what she said that her prayer was meant for guidance and that she meant no harm whatsoever at all. I am instructing everyone to stay away from the jury and not to communicate with them on any subject at all. There is no need to worry about any form of reprisals. Anyone that attepmpts [sic] to harm or threaten you in any way will be dealt with severely. You may go back with the bailiff.

After the jury returned to the deliberation room, White's lawyer objected, arguing that the jurors should not be allowed to deliberate because of Mrs. White's remark. The court overruled the objection, and the jury eventually returned a verdict of guilty. Counsel for White waived the opportunity to poll the jurors but did move for a mistrial. The court denied this motion. White was sentenced to a 20-year term of imprisonment for both offenses. He appealed the convictions to the Kentucky Court of Appeals, which affirmed. The Kentucky Supreme Court denied relief.

White then filed a petition for a writ of habeas corpus in federal district court for the Western District of Kentucky. The Commonwealth moved for summary judgment, and the district court referred the matter to a magistrate judge who recommended that summary judgment for the Commonwealth be granted on all claims. When there was no objection to the magistrate judge's recommendation, the district court adopted the recommendation, incorporating it by reference in the court's summary judgment for the Commonwealth. White moved for reconsideration, arguing that he had not been able to lodge objections to the magistrate judge's recommendation because the prison in which he was residing was under "lock down." The district court granted the motion. In its memorandum opinion, the court denied the Commonwealth's motion for summary judgment and again remanded to the magistrate judge. The district court ordered the magistrate judge to "conduct an evidentiary hearing to determine whether Petitioner's 6th Amendment right to an impartial jury was violated."

On remand, the magistrate judge, the petitioner, and the Commonwealth all concluded that "a meaningful evidentiary hearing" was not possible because Kentucky law prohibited an inquiry into the jury's deliberations. The magistrate judge recommended that the district court vacate its order remanding the case for a hearing, consider whether the statement made by White's mother would have had an effect on a "typical juror," and decide whether that effect would render the jury impartial. White filed a timely objection to the magistrate judge's report.

After further proceedings and consideration of the magistrate judge's recommendations, the district court entered its final memorandum opinion. The district court agreed with the magistrate judge's determination that an evidentiary hearing would be impossible. The district court concluded that whenever a jury is exposed to an unauthorized communication, a trial judge must conduct an evidentiary hearing to determine whether the jury was prejudiced. Because it found that the Kentucky trial court had failed to conduct such a hearing, the district court granted White's petition for a writ of habeas corpus based on his tainted jury claim. The court denied the petition on all other grounds. The district court eventually amended its conditional writ to provide that if the Commonwealth elected to retry White, the new jury could address only the PFO charge and the sentencing, not the robbery charge.

II.

The Commonwealth argues that the district court erred in granting habeas relief to White. The Commonwealth contends that a trial court is not necessarily required to conduct a hearing upon being informed of extraneous contact with the jury by a third party, particularly under the facts of this case.

We review a petition for a writ of habeas corpus de novo, giving complete deference to evidence-supported state court findings. Williams v. Withrow, 944 F.2d 284, 288 (6th Cir.1991), cert. granted, --- U.S. ----, 112 S.Ct. 1664, 118 L.Ed.2d 386 (1992).

The starting point for discussion of trial court treatment of extraneous contact with a jury is Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954). In Remmer, an unidentified person spoke to a juror, offering him a bribe if the jury brought "in a verdict favorable to the petitioner." Id. at 228, 74 S.Ct. at 450. The juror informed the judge of this communication and the trial judge informed the prosecution, ordered an FBI investigation, but did not inform counsel for the defense. The defendant later argued that this was prejudicial error. The Supreme Court agreed, stating:

In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial....

The trial court should not decide and take final action ex parte on information such as was received in this case, but should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.

Id. at 229-30, 74 S.Ct. at 451. The district court placed great reliance on Remmer. However, Remmer has not been the final word on third-party jury communications.

This court has specifically held that not all communications with jurors warrant a hearing for a determination of potential bias. In United States v. Walton, 908 F.2d 1289 (6th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229, and cert. denied, 498 U.S. 989, 111 S.Ct. 530, 112 L.Ed.2d 541, and cert. denied, 498 U.S. 990, 111 S.Ct. 532, 112 L.Ed.2d 542 (1990), we held that communication between a juror and the trial judge did not necessitate a hearing to determine whether jury bias existed. We stated that "[b]ecause of the extremely limited nature of the contact, we do not believe that the District Court was required to hold a hearing on its own motion." Id. at 1297 (emphasis added).

Thus we are faced with two paradigms. On the one hand, the facts of Remmer teach that if the communication to a juror comes from an outsider, suggesting bribery, a hearing must be held. At the same time, Walton teaches that if the communication is between a juror and a judge, no evidentiary hearing need be conducted sua sponte. In this case, the district court noted Walton, but...

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