Azure v. US
| Decision Date | 07 May 1996 |
| Docket Number | Civ. No. 94-3023. Crim. No. 87-30064-01. |
| Parties | Darrell Warren AZURE, a/k/a "Cocoa" Azure, Plaintiff/Petitioner, v. UNITED STATES of America, Defendant/Respondent. |
| Court | U.S. District Court — District of South Dakota |
COPYRIGHT MATERIAL OMITTED
Joan Elayne Powell, Law Office of Joan Powell, Gettysburg, SD, for Darrell Warren Azure.
Mikal G. Hanson, U.S. Attorney's Office, Pierre, SD, for United States.
ORDER OF DISMISSAL
(1) That the Findings of Fact, Report and Recommendations for Disposition of the United States Magistrate Judge dated and filed herein on April 22, 1996 shall be and hereby is adopted as the Findings of Fact and Conclusions of Law herein.
(2) That the Amended 28 U.S.C. § 2255 Motions, Doc. 71 and 77, are hereby denied with prejudice.
The above-entitled matter1 was referred to this Court by the District Court2 pursuant to 28 U.S.C. § 636(b)(1)(B), R. 68, for the submission to the latter court of proposed findings of fact and recommendations for disposition of the matter.
Having carefully reviewed and considered all of the records on file in Civil No. 94-3023 and Criminal No. 87-30064 and being fully advised in the premises, this Court does now make and propose the following findings of fact, report and recommendations for disposition.
Azure was charged by indictment, filed on October 1, 1987, with four counts of carnal knowledge, in violation of 18 U.S.C. §§ 1153 and 2032.3 He was arrested, appointed counsel, arraigned (after pleading not guilty to all four charges) and thereafter detained pending trial. Following a continuance requested by Azure, a four-day jury trial began in early February, 1988. On February 5, 1988 a jury found Azure guilty of all four of the offenses charged in the indictment.
The trial court sentenced Azure to a term of imprisonment of fifteen years, to be served concurrently.
Azure thereafter appealed his conviction to the Eighth Circuit Court of Appeals, which affirmed his conviction in an unpublished opinion. United States v. Azure, 873 F.2d 1445 (8th Cir.1989).
On July 27, 1994, Azure filed his initial Motion pursuant to 28 U.S.C. § 2255. After counsel was appointed to represent him, he filed an Amended Motion, and following an inquiry letter from the Court, filed a letter clarifying the issues for which habeas relief was being sought.4 An evidentiary hearing was thereafter held on February 16, 1995 and Azure was allowed to supplement the record with deposition testimony taken on September 21, 1995.
The carnal knowledge charges came to light during an interview conducted by Karen Totten, a social worker for the State of South Dakota, of R.N., a nine-year-old female child, and one of the victims. R.N. told Totten that she had been sexually abused by her first cousin, Azure. Totten arranged for R.N. to see Dr. Raymond Owens, a pediatrician, and Dr. Mary Curran, a clinical psychologist with expertise in working with sexually-abused children. In her interview with Curran, R.N. indicated that her female cousin, eleven-year-old G.M., had been sexually abused by Azure as well. During the course of Curran's interviews, both R.N. and G.M. demonstrated through the use of anatomically correct dolls how they had been sexually abused.
At trial, R.N. testified that Azure had touched her in a way that made her scared on three separate occasions while she was visiting her grandmother in Fort Thompson, South Dakota. R.N. also testified that on each occasion, Azure had penetrated her "private part". G.M. was unable to testify as to any of the details regarding the encounter with Azure, apparently because of the courtroom setting, but did state that Azure had touched her in a way that made her sad or scared. Nonetheless, G.M., along with R.N., did mark anatomically correct diagrams at trial to demonstrate what had taken place.
Azure relied primarily on an alibi defense to rebut the Government's assertions. The jury, however, returned guilty verdicts on all four charges after rather short deliberations.
Young's trial counsel, William J. Srstka, Jr., then filed a timely notice of appeal with the Eighth Circuit Court of Appeals. Following the submission of the appeal on the trial court record and the briefs of the parties, the Eighth Circuit, without oral argument, affirmed Azure's convictions.
Approximately five and one-half years later, Azure filed a Motion under § 2255 alleging ineffective assistance of counsel on the part of Srstka, and seeking habeas relief. Subsequently, counsel was appointed for him and his ineffectiveness claim was parroted down and clarified.
INEFFECTIVE ASSISTANCE OF COUNSEL.
During a recess on the third day of trial, Eugene Nagel, a sitting juror, went to the Clerk's office and asked Deputy Clerk Kathy Hammond if it was possible for him to speak to Curran about an unrelated matter involving his daughter:
It was shortly before one o'clock today a juror by the name of Eugene Nagel came into my office and asked if it would be possible to speak to the witness who had been on the stand, referring to Dr. Curran. He stated after he had listened to some of her testimony he was concerned that he might know of a crime abuse case. Specifically his daughter. He went on to state that there is this home that she used to, referring to his daughter, used to love to go to and now she is frightened of it and hates to go there and she seems to be showing some signs that Dr. Curran referred to and he wanted to speak to her before she left, wanted to know what arrangements could be made. At that time I told him I would check it out and get back to him at first recess and that was the end of the conversation.
T.Tr. 346. The trial court, after being promptly advised of the conversation, directed Hammond not to have any further discussion with Nagel. Id. at 347. The court then advised counsel of the incident during a bench conference and made a record concerning the same in chambers. Id. at 345-51. After being informed of the situation, the court inquired whether there was "anything else" from counsel. Id. at 348. Srstka replied, Id. Subsequently, after the prosecutor asked if it would be "all right" for him to make arrangements for Nagel to contact Curran after the trial, Srstka stated as follows:
I'm wondering, the more I think about this if this wouldn't color his thinking. Now, he's up there thinking about that. He has, you know, there is questions asked on voir dire as to victim of children or a member of the family been a victim of a crime and I'm wondering if he can remain fair and impartial. I'm sitting here thinking about it, Your Honor.
Id. at 350. When the court remarked that it didn't "really wish to exacerbate anything by calling him in here and questioning him", Srstka added, Id. at 351. The court afforded Srstka this opportunity, but no mention was made of the Nagel incident again.
Azure now claims that he received ineffective assistance of counsel. He contends that Srstka should have objected, moved for a mistrial or appealed on the basis of jury bias or prejudice and that Srstka's failure to do so amounted to incompetent representation. He also seemingly contends that Srstka was ineffective because he failed to raise other issues in Azure's direct appeal.
Before addressing the merits of Azure's ineffective assistance of counsel claim, a few words should be said about a ruling made by this Court under Fed.R.Evid. 606(b).
At the evidentiary hearing, Azure called Nagel as a witness. Azure sought to have Nagel testify concerning his mental impressions of trial witnesses in an effort to establish that he and/or the jury were biased or prejudiced against Azure. Evid.Hrg.Tr. 44-45. Azure also inquired as to whether the matter Nagel discussed with Hammond seven (7) years earlier, had an effect on the way Nagel voted during the course of jury deliberations. Id. at 46. The Government objected to this line of questioning and this Court sustained the objections under Fed.R.Evid. 606(b). Azure then asked the Court to reconsider its rulings, R.106, and the Court found no reason to modify the same and denied his reconsideration request. Tr. of Oral Argument, Depo. of Wm. Srstka at 2-3.
Fed.R.Evid. 606(b) generally prohibits a juror from impeaching his or her verdict.4 United States v. Swinton, 75 F.3d 374, 380 (8th Cir.1996); United States v. Krall, 835 F.2d 711, 715-16 (8th Cir.1987). The only exception to this rule is that "a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's...
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U.S. v. One Star
...conclusory allegations which will not suffice. Woods v. United States, 567 F.2d 861, 863 (8th Cir.1978); see also Azure v. United States, 925 F.Supp. 671, 681 (D.S.D.1996). Regardless, One Star's claims are ones that are capable of resolution from the record. Blankenship, 159 F.3d at 337-39......