Case v. Mondragon

• Citation: 887 F.2d 1388
• Decision Date: 25 October 1989
• Docket Number: 88-1748,Nos. 88-1685,s. 88-1685
• Parties: Carl Edwin CASE, Petitioner-Appellee, Cross-Appellant, v. Eloy MONDRAGON, Warden, Southern New Mexico Correctional Facility, Respondent-Appellant, Cross-Appellee, and Attorney General of the State of New Mexico, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1388

887 F.2d 1388

Carl Edwin CASE, Petitioner-Appellee, Cross-Appellant, v. Eloy MONDRAGON, Warden, Southern New Mexico Correctional Facility, Respondent-Appellant, Cross-Appellee and Attorney General of the State of New Mexico, Respondent.

Nos. 88-1685, 88-1748.

United States Court of Appeals, Tenth Circuit.

Oct. 25, 1989.

Peter Schoenburg, Asst. Federal Defender, Albuquerque, N.M., for petitioner-appellee, cross-appellant.

William McEuen, Asst. Atty. Gen. (Hal Stratton, Atty. Gen., with him on the briefs) Santa Fe, N.M., for respondent-appellant, cross-appellee.

Before LOGAN, SETH and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Petitioner, Carl Edwin Case, was tried in state court and convicted on a jury verdict of felony murder and criminal sexual penetration in the first degree. Following an unsuccessful state appeal ¹ Case sought federal habeas relief. The district court conditionally granted Case's petition on one ground, and denied relief on another. Both parties have appealed.

The issue upon which Case prevailed involves an allegation of jury misconduct. Case asserts that the state trial court violated his constitutional rights when it refused to question the jury after its verdict, with respect to allegations of internal jury misconduct "and/or" improper external influence. Case's Answer and Reply Brief at 2. Those allegations arose from evidence that one or more jurors crossing the street to the parking lot after the last full day of trial may have either said or heard the following two comments: "[t]hat little gal [a state rebuttal witness] was lying on the stand this afternoon, that was obvious;" and "[h]e will be found guilty, there is no other way it can go."

The second issue arises from the state trial court's denial of a continuance toward the end of the trial to enable the defense to bring in a newly-discovered witness. The witness supposedly would testify to having seen the victim several days after the date upon which the murder was charged to have occurred.

The district court referred Case's petition to the United States Magistrate for recommended findings and disposition. Based solely upon his review of the state court record, the magistrate determined that by refusing to hold a hearing at which the jurors could be examined, the state trial court "effectively denied Petitioner the opportunity to present his claim of bias and prejudice," thus inflicting "a wrong of federal constitutional dimension." Following a hearing at which the missing witness testified, the magistrate found against Case on the continuance issue.

The magistrate recommended that Case's petition be granted unless the state retried him within 120 days. The district court adopted the magistrate's recommendations

and entered judgment accordingly. We reverse on the jury misconduct issue, and affirm on the continuance issue.

I. JUROR MISCONDUCT ISSUE

A. Background.

The guilt phase of Case's trial lasted five and one-half trial days, beginning Tuesday, October 19, 1982 and ending at midday on Tuesday, October 26, 1982. The alleged incident of juror misconduct occurred Monday afternoon, October 25, apparently after court had recessed for the day. However, it did not come to light until after the guilt phase of Case's trial had concluded and the jury had returned a guilty verdict.

Deloris Reich, an individual unconnected with the trial, testified that between 4:20 p.m. and 4:40 p.m. Monday afternoon she observed "maybe a few" more than twelve people, in various groupings, cross the street during a period spanning a few minutes. R.Vol. XI at 2236, 2238, 2243-44. At another point Reich stated that "people started coming across the street, quite a few people. I don't have any idea how many. They just kept coming." R.Vol. X at 1902. They were crossing from the direction of the courthouse toward the vicinity where the jurors' cars were parked. R.Vol. XI at 2249-50. After viewing the jury the following day Reich was able to state positively that at least some members of the jury were among the people she observed crossing the street. R.Vol. X at 1903-07, 1911; R.Vol. XI at 2236-37.

As one group consisting of three or four men passed, Reich heard one of them say "[t]hat little gal was lying on the stand this afternoon, that was obvious." R.Vol. X at 1902; R.Vol. XI at 2237. At the time Reich's back was turned to the group and her attention was directed to her daughter who was in a parked vehicle, and with whom Reich had been conversing. Thus, Reich was not able to state who made the remark or who was in a position to hear it. R.Vol. X at 1902-03; R.Vol. XI at 2245.

A few minutes later as Reich was crossing the street to get to her own vehicle she passed two women, one of whom was heard by Reich to remark "[h]e will be found guilty, there is no other way it can go." R.Vol. X at 1908; R.Vol. XI at 2238. Reich's back was to the women when the remark was made, R.Vol. XI at 2246, and her attention was directed toward getting across the street. R.Vol. X at 1908. However, she turned upon hearing the remark and looked at the women, observing the side of one woman's face. R.Vol. XI at 2246.

Reich testified "I will not and cannot swear that the lady on the jury is the one that said those words, nor a man on the jury said those words." R.Vol. X at 1911. However, as indicated, Reich was firm in her conclusion that jurors were among those crossing the street, and she felt that the two ladies, one of whom made the remark in question, were members of the jury, but simply was unable to say "for absolutely sure." R.Vol. XI at 2248-49. She expressed similar feelings with respect to at least one of the men in the group from which the other remark in question had been heard. Id.

Reich, who was aware that a trial was going on, thought the two remarks in question were odd, R.Vol. X at 1914, R.Vol. XI at 2246, but did nothing about the matter until the following day, Tuesday, when she called Pam Thompson, a radio reporter friend of hers. Reich asked Thompson about the trial and was told that the jury had found Case guilty. Reich told Thompson she was not surprised by a guilty verdict "because of what I heard." R.Vol. XI at 2247.

The sentencing phase of Case's trial commenced the following day, Wednesday, October 27. Apparently Thompson had Reich come to the courthouse that morning to see if she could identify members of the jury as those whom Reich had observed crossing the street. Reich was able to identify at least eight of the jurors (inclusive of the two alternates). R.Vol. X at 1907. Thompson then broadcast an account of what Reich had overheard. The matter came to the attention of Case's counsel, who brought it up with the trial court immediately Since Reich had purportedly identified some of the jurors that morning the trial court permitted representatives of the two sides to go to Reich's home to record an interview with her. R.Vol. X at 1900. A motion by defense counsel for an immediate voir dire of the still-impaneled jury was denied.

following the noon recess that same day. The court informed counsel that he had learned of the incident the previous evening, and had spoken to Reich on the telephone, but decided not to pursue the matter when Reich stated that she did not know if any jurors were involved.

At 3:30 p.m. that same afternoon, Wednesday, October 27, one of Case's counsel, and an investigator for the state, returned to court with a tape of an interview with Reich in which she substantially recounted the events already described. The tape was played to the court and counsel in chambers. Case's counsel then moved again for a voir dire of the jury and the motion was once again denied. R.Vol. X at 1917.

The following afternoon, Thursday, October 28, after the jury had retired to deliberate on Case's sentence, the trial court held an evidentiary hearing on the jury misconduct issue. As the following exchange between the court and Case's counsel indicates, the defense was not limited in any way as to what it could present in that hearing, with the exception of a voir dire of the jury:

"MR. MITCHELL: ... And I think the first thing that comes first is presenting whatever evidence I may have in that regard, Your Honor, in addition to what was submitted to the Court yesterday on the record [referring to the tape recording of Reich's interview.]

THE COURT: I'll be frank with you, nothing was submitted to the Court yesterday insofar as I could tell. But you may submit any other evidence. And I told you at that time you could."

R.Vol. XI at 2231 (emphasis added).

Case's counsel then produced Reich, who was examined and cross-examined under oath in open court, generally repeating what she had stated in the recorded interview. No other evidence was proffered.

At the conclusion of the hearing Case's counsel moved in the alternative for a mistrial on the ground of jury misconduct, and, for the third time, that permission be granted to voir dire the jury because of the evidence presented by Reich. Both motions were denied without explanation, R.Vol. XI at 2250, although the trial court had explained at the outset of the evidentiary hearing that:

"THE COURT: I'm willing to listen to see if there was jury misconduct. And if there is jury misconduct and you can prove it to the Court, you are entitled, depending on when it occured, [sic] to a new trial, maybe to a new sentencing hearing. I don't know."

R.Vol. XI at 2232-33. See also R.Vol. IX at 1818-20. And, earlier, the court stated:

"But this is the way the lady sounded to me, and it just--we don't know how many people are crossing the street.... She doesn't know anything about this as to who said what to whom, and there isn't any sense in pushing it."

R.Vol. X at 1917 (emphasis added). Thus, it is a fair inference that the trial court found no factual basis for the claim of juror misconduct sufficient to justify a voir dire of the jurors.

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