Clemmons v. Sowders

• Decision Date: 26 August 1994
• Docket Number: No. 93-5825,93-5825
• Citation: 34 F.3d 352
• Parties: Kenneth CLEMMONS, Petitioner-Appellant, v. Dewey SOWDERS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 352

34 F.3d 352

Kenneth CLEMMONS, Petitioner-Appellant, v. Dewey SOWDERS, Warden, Respondent-Appellee.

No. 93-5825.

United States Court of Appeals Sixth Circuit.

Submitted March 25, 1994.

Decided Aug. 26, 1994.

Kenneth Clemmons, pro se.

Samuel J. Floyd, Jr., Asst. Atty. Gen., Frankfort, KY (briefed), for respondent-appellee.

Before: RYAN and NORRIS, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

Petitioner pro se, Kenneth Clemmons, filed a 28 U.S.C. Sec. 2254 petition for writ of habeas corpus on November 9, 1992. The district court, adopting the magistrate's findings of fact and conclusions of law, dismissed the petition. Clemmons now appeals that order.

In the spring of 1990, a Woodford County, Kentucky jury convicted Clemmons of first degree burglary and theft over $100, and found him to be a first degree persistent felony offender. The court sentenced Clemmons to over twenty years imprisonment in July, 1990. Clemmons lost his direct appeal and presented the identical claims in his habeas corpus petition.

Clemmons's convictions stem from a July 23, 1989 theft of firearms from the residence of Michael Cline, farm manager of Lane's End Farm in Woodford County, Kentucky. Kenneth Clemmons and his brother, James Clemmons, were both found guilty of the substantive burglary and theft charges, though only Kenneth was found to be a persistent felony offender. Witnesses at trial testified that the brothers sold the stolen firearms to drug dealers for cash and cocaine.

On appeal, Clemmons challenges the denial of his petition for writ of habeas corpus by raising seven assignments of evidentiary and procedural error. We find none of his arguments to be well taken.

State prisoners, such as Clemmons, may file a 28 U.S.C. Sec. 2254 petition for writ of habeas corpus to challenge the constitutionality of their state court convictions, after exhausting all available state court remedies. 28 U.S.C. Sec. 2254(a)-(c). We review de novo denials of petitions for writs of habeas corpus. Carter v. Sowders, 5 F.3d 975, 978 (6th Cir.1993); Levine v. Torvik, 986 F.2d 1506, 1512 (6th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 3001, 125 L.Ed.2d 694 (1993). As always, we review federal district court findings of fact for clear error. Carter v. Sowders, 5 F.3d at 978. Pursuant to the 28 U.S.C. Sec. 2254(d) presumption of correctness, we give complete deference to district and state court findings supported by the evidence. Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1307, 71 L.Ed.2d 480 (1982); Carter v. Sowders, 5 F.3d at 978. To obtain habeas corpus relief, the petitioner must establish "actual prejudice". Brecht v. Abrahamson, --- U.S. ----, ----, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353, reh'g denied, --- U.S. ----, 113 S.Ct. 2951, 124 L.Ed.2d 698 (1993). Though a petitioner must establish a constitutional error to obtain habeas relief, a constitutional error is deemed harmless unless it had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, --- U.S. at ----, 113 S.Ct. at 1722.

I.

Petitioner first charges that the district court erred by failing to find the trial court improperly coerced him into waiving an order for mistrial in violation of due process.

Clemmons asserts that during voir dire, the prosecutor improperly told the prospective jurors that two government witnesses, who had participated in the charged crimes with defendant, pled guilty and would testify against defendant. Upon motion of defense counsel, the trial court granted a mistrial. Because of scheduling difficulties, the trial could not be rescheduled for approximately six months. Facing the prospect of jail time without bond pending trial, defendant elected to waive the mistrial order and go forward. Thus, upon motion of defense counsel, the trial court set aside the mistrial order and proceeded. In exchange, petitioner agreed not to raise this issue on appeal. Petitioner now argues, however, that the court coerced him into going forward with threats to increase his brother's jail time and threats to withhold his own bond. The petitioner relies on Parido v. Commonwealth of Kentucky, 547 S.W.2d 125 (Ky.1977) for the proposition that a mistrial was compulsory in this situation. The district court, in denying the petition for writ of habeas corpus relief, did not find this argument well taken.

Mistrial motions "must be granted only upon a showing of 'manifest necessity.' " United States v. Atisha, 804 F.2d 920, 926 (6th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). Otherwise, the district court has the discretion to grant or deny a motion for mistrial. United States v. Atisha, 804 F.2d at 926. This court must thus determine whether the trial court abused its discretion by failing to grant a mistrial. United States v. Atisha, 804 F.2d at 926.

As there is no evidence that the trial court abused its discretion, we find this argument to be without merit. On direct appeal, the state supreme court found that Clemmons did not want a six month delay for his trial and, after extensive consultation with counsel, waived the court's mistrial order. The state supreme court further found, and the record supports, that the trial court played a proper neutral role during discussions on this topic and exerted no coercion on defendant.

II.

Related to the first assigned error is the petitioner's presentation of three purported juror-based errors. Petitioner charges: 1) the district court erroneously failed to find the trial court incorrectly prohibited his impeachment of the jury's verdict based upon juror incompetence; 2) the district court erred by finding the trial court did not abuse its discretion in excusing a prospective juror for cause; and 3) the district court erred by holding the trial court did not abuse its discretion by disallowing jurors to take notes into the jury room during deliberations.

Yielding a jury verdict via a petition for habeas corpus relief, as has already been noted, requires a finding of a constitutional error with a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, --- U.S. ----, at ----, 113 S.Ct. 1710 at 1722.

Regarding juror misconduct specifically, only conduct that deprives defendant of a fair and impartial trial warrants habeas relief. Monroe v. Collins, 951 F.2d 49, 51-52 (5th Cir.1992).

A.

Competency to sit on a jury is a determination within the broad discretion of the trial court and will be tampered with only upon finding an abuse of that discretion. United States v. Berryhill, 880 F.2d 275, 279 (10th Cir.1989), cert. denied, 493 U.S. 1049, 110 S.Ct. 853, 107 L.Ed.2d 846 (1990); United States v. Rodriguez, 573 F.2d 330, 332 (5th Cir.1978). See United States v. Ramos, 861 F.2d 461, 466 (6th Cir.1988), cert. denied, 490 U.S. 1011, 109 S.Ct. 1653, 104 L.Ed.2d 167 (1989). When the possibility of juror incompetence comes to the court's attention, but the juror's disability is not obvious, the court is obliged only to conduct some hearing or inquiry. United States v. Fajardo, 787 F.2d 1523, 1525 (11th Cir.1986).

Early in the sentencing phase of the trial, a juror interrupted the prosecutor's opening statement and sought to speak to the trial judge privately in chambers. The judge agreed, and the juror confided to the judge that he was unsure of the guilty verdict due to stress he was experiencing as a result of the serious illnesses of an uncle and sister. The judge asked the juror whether he would have voted against conviction absent the stress and the juror indicated he would not have. A defense poll of the jury at the conclusion of the guilt phase of the trial affirmed the unanimity of the verdict.

Respectful of the juror's distress, the court postponed the sentencing phase for some weeks and, upon re-initiation, asked the juror if he felt able to go forward. The juror told the court that he had consulted a doctor regarding his nervousness and felt fine. The court proceeded with the sentencing phase. Petitioner now charges that the court should have investigated the juror's competence more thoroughly before proceeding.

Mindful of the juror's emotional state, the court conducted an informal hearing/interview. The transcript of the interview suggests that the juror did not believe he had come to the wrong decision in voting to convict Clemmons, but that he did not feel he could continue through the sentencing phase. As a result, the court continued the case and postponed the sentencing phase for a few weeks. Before proceeding on the new date, the court again talked to the juror, who assured the court that he had consulted a doctor and felt well enough to continue. There is no evidence in the record to refute the juror's statements to the court that he was able to listen to and fairly consider the evidence adduced at trial. The trial court has discretion to question a juror whose qualifications have been called into doubt during trial in order to resolve the problem and ensure a fair and competent jury. United States v. Campbell, 845 F.2d 782, 785, (8th Cir.), cert. denied, 488 U.S. 965, 109 S.Ct. 490, 102 L.Ed.2d 527 (1988). A court is not obliged to excuse a juror where there is no evidence the juror's anxiety rendered him incompetent to understand the issues and deliberate. United States v. Marchant, 774 F.2d 888, 894-895 (8th Cir.1985), cert. denied, 475 U.S. 1012, 106 S.Ct. 1190, 89 L.Ed.2d 305 (1986). Thus, this assigned error is meritless.

B.

Excusing a prospective juror for cause is within the trial court's broad discretion and the determination will not be reversed absent a manifest abuse of discretion. Poynter v. Ratcliff, 874 F.2d 219, 222 (4th Cir.1989); United States v. Huddleston, 810 F.2d 751, 753 (8th Cir.1987), United States v. Giacalone, 588 F.2d 1158, 1163 (6th Cir.1978), cert. denied, 441 U.S. 944, 99...