Bauberger v. Haynes

• Decision Date: 27 October 2009
• Docket Number: No. 1:08cv15.,1:08cv15.
• Citation: 666 F.Supp.2d 558
• Court: U.S. District Court — Middle District of North Carolina
• Parties: William Thomas BAUBERGER, Petitioner, v. Grady J. HAYNES, Supt. of Warren Correctional Inst., Respondent.

666 F.Supp.2d 558

William Thomas BAUBERGER, Petitioner, v. Grady J. HAYNES, Supt. of Warren Correctional Inst., Respondent.

No. 1:08cv15.

United States District Court, M.D. North Carolina.

October 27, 2009.

COPYRIGHT MATERIAL OMITTED

Kearns Davis, Brooks Pierce McLendon Humphrey & Leonard, Greensboro, NC, David Lybrook Neal, David L. Neal, Attorney at Law, Hillsboro, NC, for Petitioner.

Clarence Joe Delforge, III, N.C. Department of Justice, Raleigh, NC, for Respondent.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

On May 15, 2008, in accordance with 28 U.S.C. § 636(b), the United States Magistrate Judge filed a Memorandum Opinion and Recommendation ("Recommendation"). (Doc. 12.) Respondent (the "State") timely raised several objections to the Recommendation (Doc. 14), and Petitioner William Thomas Bauberger ("Bauberger") responded (Doc. 17). The court entertained oral argument on the objections on September 17, 2009. For the reasons set forth herein, the objections are overruled and the Recommendation is adopted.

I. BACKGROUND

The facts are not in dispute and are set out in more detail in the Magistrate Judge's report. Those facts necessary to resolve the State's objections are set forth below.

On February 3, 2002, Petitioner Bauberger consumed in excess of ten beers over the course of approximately five hours at a Super Bowl party and then left via his car to visit a friend. En route, he drove the wrong way down an exit ramp of U.S. Highway 421 in Winston-Salem, North Carolina, and collided with a car driven by William Foy. Tragically, Foy's wife, a passenger, died within minutes of the crash.¹

Bauberger was charged with second-degree murder, the lesser included offense of involuntary manslaughter, and assault with a deadly weapon inflicting serious injury. At trial after the close of the evidence, Bauberger conceded guilt as to the involuntary manslaughter charge only. A principal issue for the jury, therefore, was whether the state proved Bauberger acted with malice for a second-degree murder conviction. To prove malice, the state presented evidence that Bauberger (1) admitted to driving with a blood alcohol level of .20 on the night of the crash; (2) had at least two prior convictions for Driving While Intoxicated, as well as other driving offenses such as reckless driving; (3) disregarded road signs and other warnings on the night of the crash; (4) disregarded prior court orders not to drive; (5) drove that night despite having had his license revoked; and (6) acted in a profane manner to emergency personnel and others at the scene of the crash.

After the presentation of evidence, the jury was instructed and began its deliberations at 11:48 a.m. on August 14, 2003. Shortly thereafter, the jury sent a note to the trial judge requesting a written copy of the instruction as to the elements of second-degree murder and manslaughter. The jury was brought into the courtroom at 12:11 p.m., and the court read the jury's question aloud. The trial judge noted that he did not have a written instruction in a form that could be readily submitted to the jury and re-read his charge for second-degree murder (including malice) and involuntary manslaughter. (Tr. Vol. IV at 35-43.) One of the jurors asked that they be permitted to continue to deliberate before the lunch break, and the jurors were returned to the jury room.

Shortly thereafter, the jury sent another note requesting "a copy of the fifth element of second-degree murder"—malice, as well as a copy of any other elements to which the defendant did not stipulate. The jury's note advised, "Many of us are visual people." (Tr. Vol. IV at 44.) The trial judge returned the jury to the courtroom at 12:46 p.m. and advised them that he would have a clean copy of the elements prepared over the lunch recess for their use. Then a colloquy arose between several jurors and the trial judge. One of the juror's indicated, "[b]asically, all we're looking for is that sheet," referring to the judge's instructions. Another juror corrected, "Well, that's not true." The previous juror said, "we would like to at least have that while you work on the other copy." And another added, "We wanted the second degree and manslaughter." (Doc. 3, Ex. 3, Tr. Vol. IV at 46.) The trial judge promised the jury copies after lunch and dismissed them at 12:47 p.m.

During the lunch recess, the jury foreman went to the Forsyth County Public Library and checked out Webster's New Collegiate Dictionary. He brought the dictionary into the jury room after lunch and, during deliberations that resumed at 2 p.m., shared with the jurors the definition of several of the words contained in the judge's instructions for "malice." Sometime at or after 2 p.m., one of the lawyers handed the judge a typed version of some portion of the instructions. Unfortunately the transcript does not reflect the contents of the document or when this occurred. This typed version was simply given to the jury after it had resumed its deliberations, per agreement of counsel. The bailiff also asked for a highlighter, presumably at the jury's request.

The jury deliberated for two hours after lunch and was returned to the courtroom at 4:08 p.m. when it advised that it had reached a verdict on one charge but was deadlocked 7 to 5 on the other charge. The court emphasized the jurors' duty to do whatever they could to reach a verdict to "reason this matter over together as reasonable men and women and to reconcile your differences if you can without the surrender of conscientious convictions" as to the weight of the evidence, and returned the jury to deliberate further at 4:10 p.m. (Tr. Vol. IV at 51-52.)

At 5:03 p.m., the foreman advised the court that the jury had moved to 10 to 2 on the remaining count. The foreman advised that in lieu of quitting for the day they would "keep on for a little while." (Tr. Vol. IV at 56.)

At 6:06 p.m., the jury returned a verdict finding Bauberger guilty of second-degree murder and assault with a deadly weapon inflicting serious injury.

Following the verdict, the court was informed that the jury may have consulted a dictionary during deliberations. Bauberger sought relief in a state court motion for appropriate relief three days after his sentencing. Having been unsuccessful in his appeals, he sought relief in federal court in this petition.

The Magistrate Judge issued a 39-page Report and recommends that the petition be granted. The State has filed multiple objections to the Report and Recommendation. This court reviews the objections de novo. 28 U.S.C. § 636(b)(1)(C). All of the objections have been carefully considered, and two that warrant discussion are addressed below.

II. ANALYSIS

A. Standard of Review

The State's first objection relates to the standard of review under 28 U.S.C. § 2254(d). Section 2254(d)(1) provides that an application for a writ of habeas corpus shall not be granted unless the state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A state court "unreasonably applies" U.S. Supreme Court law when it "identifies the correct governing legal principle ... but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). "[T]he state court's decision must have been more than incorrect or erroneous[,] ... [it] must have been `objectively unreasonable.'" Wiggins v. Smith, 539 U.S. 510, 520-521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (internal citation omitted). The State objects to the Magistrate Judge's determination that the decision of the North Carolina Court of Appeals— finding that the dictionary was not an extrinsic influence on the jury's deliberations—was an unreasonable application of clearly established law. (Doc. 14 at 4-9.)

The U.S. Supreme Court has clearly established that an extrinsic influence on a jury's deliberations violates a defendant's Sixth and Fourteenth Amendment rights to an impartial jury, to confront witnesses against him, and to be present at all critical stages of his trial. See, e.g., Rogers v. United States, 422 U.S. 35, 38-40, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975); Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Parker v. Gladden, 385 U.S. 363, 364-66, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966); Turner v. Louisiana, 379 U.S. 466, 473, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). Furthermore, "[u]nder clearly established Supreme Court case law, an influence is ... [extrinsic] if it (1) is extraneous prejudicial information; i.e., information that was not admitted into evidence but nevertheless bears on a fact at issue in the case, see Parker, 385 U.S. at 364, 87 S.Ct. 468; Turner, 379 U.S. at 473, 85 S.Ct. 546, or (2) is an outside influence upon the partiality of the jury, such as `private communication contact, or tampering ... with a juror.'" Robinson v. Polk, 438 F.3d 350, 363 (4th Cir.2006) (citing Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954)).

Though the State correctly observes that the Supreme Court has not specifically held that a jury's use of a dictionary is an extrinsic influence (Doc. 14 at 8), "the relevant Supreme Court precedent need not be directly on point, but must provide a `governing legal principle' and articulate specific considerations for the lower courts to follow when applying the precedent." Quinn v. Haynes, 234 F.3d 837, 844 (4th Cir.2000) (citing Williams, 529 U.S. at 413, 120 S.Ct. 1495); see Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) ("That the standard is stated in general terms does not mean the application was reasonable. [Section 2254(d)(1)] does not `require state and federal courts to wait for some nearly identical factual pattern...