Clements v. Clarke

• Decision Date: 20 January 2010
• Docket Number: No. 09-1629.,09-1629.
• Citation: 592 F.3d 45
• Parties: Jason CLEMENTS, Petitioner, Appellee, v. Harold W. CLARKE, Respondent, Appellant.
• Court: U.S. Court of Appeals — First Circuit

592 F.3d 45

Jason CLEMENTS, Petitioner, Appellee, v. Harold W. CLARKE, Respondent, Appellant.

No. 09-1629.

United States Court of Appeals, First Circuit.

Heard September 15, 2009.

Decided January 20, 2010.

Randall B. Ravitz, Assistant Attorney General, Criminal Bureau, with whom Martha Coakley, Attorney General, was on brief, for appellant.

Rosemary Curran Scapicchio for appellee.

Before TORRUELLA, SELYA and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

This habeas petition is before us for a second time. In 1995, a Massachusetts Superior Court jury convicted Jason Clements of second-degree murder, resulting in his receiving a life sentence. After unsuccessfully appealing his conviction, Clements petitioned for a writ of habeas corpus in the District of Massachusetts pursuant to 28 U.S.C. § 2254. When this case first reached us, we clarified which issues had been exhausted and were therefore appropriate for collateral review. See Clements v. Maloney, 485 F.3d 158 (1st Cir.2007) (Clements IV). On remand, the district court granted the petition, concluding that the state trial judge had impermissibly, though unintentionally, coerced a guilty verdict as a result of a series of voir dire examinations of individual deliberating jurors. See Clements v. Clarke, 635 F.Supp.2d 26 (D.Mass.2009) (Clements V).

The Commonwealth now appeals. We conclude that the district court employed an insufficiently deferential standard of review and that the state-court conviction should stand.

I. Facts

The details of both the crime and the petitioner's state trial have already been laid out in the numerous other reported decisions that his post-conviction challenges have produced. See Clements IV; Clements v. Maloney, 359 F.Supp.2d 2 (D.Mass.2005) (Clements III); Commonwealth v. Clements, 436 Mass. 190, 763 N.E.2d 55 (2002)(Clements II); Commonwealth v. Clements, 51 Mass.App.Ct. 508, 747 N.E.2d 682 (2001) (Clements I). A similarly well-developed record of the chronology of the jury's deliberations, from which the central issue in this appeal arises, can be found in the district court's most recent opinion. See Clements V. We synthesize only the key facts of the crime here, but necessarily will describe in more detail the events surrounding the jury's deliberations. Any state court factual findings are presumed to be correct. O'Laughlin v. O'Brien, 568 F.3d 287, 290 (1st Cir.2009); 28 U.S.C. § 2254(e)(1). This deference extends to findings by all state tribunals, whether trial or appellate. Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir.2002). Where necessary, we also supplement the state courts' factual findings with other portions of the record that are consistent with them. O'Laughlin, 568 F.3d at 290.

On January 30, 1995, Gregory Tillery was shot to death in Dorchester, Massachusetts. Having identified the petitioner and Kenneth Mattox as the culprits, the authorities charged them with second-degree murder by joint venture, armed assault with intent to murder, and unlicensed possession of a firearm. Appearing before the grand jury, Sakoya Willis, an eyewitness, affirmatively identified Clements as the killer. Willis had been selling drugs with the victim on a street corner when they were confronted by the defendants, and Willis was standing next to Tillery when the shooting began. At trial, however, Willis recanted his identification of Clements, insisting that he had not truly seen the shooter. The Commonwealth impeached Willis' testimony with his prior inconsistent statements, which included an identification from a photo array and a recorded statement to the police, in addition to his grand jury testimony. The remainder of the prosecution's case was based on circumstantial evidence.

The jury began deliberating on the afternoon of Monday, January 26, 1998, continuing for an hour before the court adjourned for the day. The jury reconvened on Tuesday morning and, after requesting Willis' trial testimony and inquiring into the theory of joint venture, continued to deliberate until mid-afternoon. At that point, the judge received a note from the jury indicating that it was deadlocked. The judge returned the note and instructed the jury to continue deliberating, which it did for the remainder of the day.

On Wednesday, the jury once again notified the judge that it was deadlocked. The judge issued the standard instructions given in Massachusetts courts when jurors have been unable to agree, known as a "Tuey-Rodriguez charge." See Commonwealth v. Rodriquez, 364 Mass. 87, 300 N.E.2d 192, 202-03 (1973); Commonwealth v. Tuey, 62 Mass. 1, 8 Cush. 1, 2-3 (1851). Following this instruction from the court, the jury resumed deliberating, but finished early for the day with the court's permission.

On Thursday morning, the judge received two more notes, each from a different juror. The first stated that the juror's wife had an important medical appointment the following day. The second, from Juror No. 4, said that "[o]ne person is not competent enough to be on this jury." The judge decided to interview Juror No. 4, a full-time dental student who had previously expressed reservations about the trial schedule. During the interview, Juror No. 4 began referring to a "big impasse," but the judge immediately told him not to disclose anything further concerning deliberations. Following this, the entire jury was again instructed to resume deliberations.

Then, on Thursday afternoon, the judge received a third note, which quickly precipitated the chain of events giving rise to this appeal. This note succinctly stated, "Upon further investigating, a statement made by one of the jurors is biased; and we would like to speak to the Judge concerning this extreme." The note bore the signature of Juror No. 9, with the addendum "Foreman refused to sign it." After considering the note, the judge resolved to conduct an individual voir dire of each juror in order to determine whether any evidence of bias existed and what impact, if any, the alleged bias might be having on the deliberations.

The judge asked the first juror interviewed whether there was anything said that she might consider to be a biased statement. The juror responded, "[O]ne of the jurors say ... I feel that if they go to jail then he ought to go to jail, too, talking about one of the witnesses. So we assumed—take that as a biased statement." Asked to clarify, the interviewee went on to explain that the juror in question had said, "[W]hy should I put two innocent guys in jail when I believe the witness should be in jail himself. So she assume—you know, she figure that all of them should be in jail or they should be set free because she doesn't believe this witness."

After the interview concluded, all agreed that the reported statement did not seem to involve any bias. The judge agreed with Mattox's attorney that what amounted to one juror's concerns over testimony was no reason to intervene. Nevertheless, the judge observed that they had only "heard from one juror," and that she "wasn't exactly clear that you can take that as a necessary statement." The court therefore decided to inquire of at least one other juror in order to confirm the first interviewee's version of events.

The next juror interviewed was No. 4, the dental student who had previously expressed reservations about the length of the deliberations. At the time, the judge actually suspected that Juror No. 4 was the source of the allegedly biased statement. Shortly after beginning the interview, the court realized that this suspicion was incorrect. Juror No. 4 said that he was "[o]ne hundred percent positive" that he had heard something indicating bias or prejudice on the part of another juror. The colloquy continued:

JUROR: We were discussing the reason we were at an impasse. And the juror—do you want me to give a name— the juror who was one of the people who was in the—against the majority of the rest of the people basically said that she could not basically believe Sakoya Willis' testimony because of the fact that she believes he should go to jail and she cannot convict two defendants on that, basically, because Sakoya Willis has no punishment towards him. So, basically, she believes that the witness is not credible for that reason.

THE COURT: So explain to me what you see as the bias.

JUROR: Basically, she would not convict the two defendants because she believes Sakoya Willis deserves to go to jail, as well. And that was clean out, simple as can be, stated to all of us; and all of us heard it.

THE COURT: Do you think that this statement by her will interfere with your own ability to fairly deliberate on the evidence in the case?

JUROR: My own ability?

THE COURT: Yes.

JUROR: No, not at all. It won't affect my ability. I think it affected her ability.

THE COURT: All right. So you think, as far as you are concerned, you can continue to deliberate—

JUROR: I have no problem. It has not changed my mind in the case. I believe that—

THE COURT: Okay. Don't tell us what you believe. But you think you can fairly—

JUROR: I have no problem continuing deliberating in this case.

THE COURT: All right. Thank you.

After this exchange concluded, counsel for each defendant moved for a mistrial, arguing that the jury had reached an impasse. The judge considered the motions during a recess, but ultimately decided that, having started the voir dire process, it would be appropriate to complete it. Each defendant's attorney objected on the record.

Subsequent interviews revealed more of the same. Juror No. 5 stated that the juror in question had "said something to the effect that I can't put two young men in jail when I think the person who is giving the testimony should be in jail, also." As before, the judge followed by asking if "having heard that statement is going to interfere with your own personal ability to deliberate on this case and consider fairly the evidence." Again, the juror reassured the judge that it would not. After...