Booker v. Israel

• Decision Date: 29 May 1985
• Docket Number: No. 82-C-294.,82-C-294.
• Citation: 610 F. Supp. 1310
• Parties: Raymond Lee BOOKER, Petitioner, v. Thomas R. ISRAEL, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

610 F. Supp. 1310

Raymond Lee BOOKER, Petitioner, v. Thomas R. ISRAEL, Respondent.

No. 82-C-294.

United States District Court, E.D. Wisconsin.

May 29, 1985.

William S. Mautner, Milwaukee, Wis., for petitioner.

Sally L. Wellman, Asst. Atty. Gen., Madison, Wis., for respondent.

DECISION and ORDER

MYRON L. GORDON, Senior District Judge.

Raymond Lee Booker, the petitioner, originally filed his habeas corpus petition on March 15, 1982. On July 7, 1983, I dismissed the petition in its entirety and without prejudice because Mr. Booker had failed to exhaust his state remedies with regard to one of the claims in his petition. 566 F.Supp. 868. He subsequently exhausted his state remedies as to this claim and, thereafter, filed a motion for reconsideration of my July 7, 1983, order. By an order dated December 14, 1984, I vacated my July 7, 1983, order of dismissal, thereby reinstating Mr. Booker's habeas corpus petition.

The petitioner was convicted in state court of armed robbery, party to a crime; concealing identity; and habitual criminality. His motions for a new trial and modification of sentence were denied by the trial court. The Wisconsin court of appeals affirmed the judgment of conviction and the order denying the postconviction motions. A petition for review filed with the Wisconsin Supreme Court was denied insofar as it related to the claims presently at issue.

Mr. Booker's petition for habeas corpus relief contains six claims. In his briefs in support of the petition, however, he argues only four of these claims. The petitioner asserts that:

(1) the bailiff's submission of an instruction to the jury during deliberations at the direction of the trial judge, in the absence of the petitioner, his counsel, and the trial judge, and off the record, infringed his constitutional rights to counsel, due process, and presence at all critical stages of the trial;

(2) the trial court's refusal to strike juror Jacqueline Lewis for cause violated his sixth amendment right to an impartial jury and due process right to a fair trial;

(3) the trial court's exclusion of the testimony of defense witness Paul Moore infringed his sixth amendment right to compulsory process and due process right to a fair trial; and

(4) the trial court's instruction to the jury concerning accomplice testimony violated his constitutional right to present evidence and call witnesses in his own behalf.

INSTRUCTION DURING JURY DELIBERATIONS

During the jury deliberations, on February 21, 1980, the jury foreperson presented one of the bailiffs with a written request for reinstruction on the burden of proof. In response to the request, the trial judge directed the bailiff to give the jury a copy of the burden of proof instruction that had been read to them earlier in open court. Neither the prosecutor, defense counsel, nor the petitioner were informed of the jury's request or consulted regarding the judge's response. The exchange between the bailiff and the judge was not placed on the record, nor was the burden of proof instruction submitted to the jury made a part of the record.

Defense counsel subsequently learned of the incident and, following the return of the guilty verdict, brought the matter to the court's attention. The following exchange then occurred:

Ms. Levine Defense counsel: And I'd also ask to be put on the record that there was at some point a request for additional instructions from the jurors during the deliberations.

The Court: Yes, there was a request called in for burden of proof. The court had the burden of proof instruction that was read to them sent in.

R. 411. The trial court offered the defense counsel an opportunity to make a record and question the bailiffs concerning the jury's query. Defense counsel, however, did not question the bailiff about the jury's request for reinstruction. Nor did she attempt to obtain a copy of the burden of proof instruction given to the jury or attempt to question the jurors regarding the reinstruction that they received.

Following the trial, the petitioner filed a motion in the trial court for postconviction relief challenging, inter alia, the propriety of the trial court's submission of the burden of proof instruction to the jury during its deliberations. Over nine months later, on December 3, 1980, a hearing on the postconviction motion was held. At the hearing, defense counsel questioned the bailiff who had been involved in the reinstruction of the jury. He could not specifically recall the case nor could he clearly remember whether he gave the jurors the burden of proof instruction. He did testify, however, that if the court had directed him to submit a typed copy of the instruction to the jury, he would have done so and would not have embellished it or offered his personal opinion of the instruction or the case. No other record on this issue was made at the postconviction hearing.

The petitioner contends that the trial court's submission of a supplementary instruction to the jury in the absence of counsel and the petitioner, and without proceeding in open court, violated his sixth and fourteenth amendment rights to counsel, to be present at all critical stages of the trial, and to due process. It would have been better practice for the trial judge to have notified counsel of the jury's request for reinstruction and to have given them an opportunity to be heard, on the record. See Shields v. United States, 273 U.S. 583, 588-89, 47 S.Ct. 478, 479, 71 L.Ed. 787 (1927). Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 81, 39 S.Ct. 435, 436, 63 L.Ed. 853 (1919). The Supreme Court has observed that an ex parte communication between the court and a deliberating jury "is pregnant with possibilities for error." United States v. United States Gypsum Co., 438 U.S. 422, 460, 98 S.Ct. 2864, 2885, 57 L.Ed.2d 854 (1978). The question for this court, however, is not whether the trial court followed the better practice but whether the action of the trial court amounts to constitutional error.

In a recent decision, United States v. Gagnon, ___ U.S. ___, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985), the Supreme Court stated:

"`The mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right. The defense has no constitutional right to be present at every interaction between a judge and a juror, nor is there a constitutional right to have a court reporter transcribe every such communication.'"

Quoting Rushen v. Spain, 464 U.S. 114, 125-26, 104 S.Ct. 453, 459, 78 L.Ed.2d 267 (1983) (Stevens, J., concurring in judgment). A defendant has a constitutional right to be present at a proceeding "whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge ... The presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Snyder v. Massachusetts, 291 U.S. 97, 105-106, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934).

In the present case, there is no evidence that the petitioner's constitutional rights were thwarted by the trial court's failure to inform the petitioner and counsel of the jury's request. The Wisconsin court of appeals found that there was no indication that the jurors received anything except a copy of the burden of proof instruction that the trial court had previously read to them. The petitioner makes no claim that this instruction was constitutionally infirm. The state court's factual findings concerning the substance of the communications between the trial judge, the bailiff, and the jury regarding the requested reinstruction are findings of fact entitled to a presumption of correctness. See, Rushen, supra, 104 S.Ct. at 456; Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); 28 U.S.C. § 2254(d). These findings must be deferred to by the federal courts in the absence of "convincing evidence" to the contrary. Rushen supra, 104 S.Ct. at 456; Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983).

The petitioner in this case has offered no evidence to contradict the state court's finding. Relying on the bailiff's failed memory at the December 3, 1980, postconviction hearing, the petitioner merely speculates that the bailiff may have given the jury something other than the written burden of proof instruction. Such speculation cannot support the petitioner's constitutional challenge.

Defense counsel had an ample opportunity to question the bailiff on February 21, 1980, immediately after the verdict was returned, but did not do so. Neither did she attempt to obtain and preserve a copy of the instructions given to the jury by the bailiff. Nor did she attempt to voir dire the jury as to the substance of the reinstruction they received. Defense counsel only questioned the bailiff some nine months later at the postconviction hearing, when his memory of the reinstruction incident was understandably dim. The burden is not on the state to show that no constitutional right has been violated but on the petitioner to demonstrate that he has been deprived of a constitutional right. Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 1607, 36 L.Ed.2d 235 (1973).

There being no evidence that during their deliberations the jury received anything but a copy of the burden of proof instruction previously read to them by the trial judge in open court, the petitioner's challenge must stand on the claim that the court's ex parte submission of this instruction was unconstitutional. In this case, however, the presence of the petitioner and his trial counsel was not required to ensure fundamental fairness or a "'reasonably substantial ... opportunity to defend against the charge,'" Snyder, supra, 291 U.S. at 105, 54 S.Ct. at 332, quoted in Gagnon, supra, 105 S.Ct. at 1484, before the trial court had the bailiff transmit the burden...