Duckett v. Godinez

• Citation: 67 F.3d 734
• Decision Date: 05 September 1995
• Docket Number: No. 93-17036,93-17036
• Parties: , 95 Cal. Daily Op. Serv. 6979, 95 Daily Journal D.A.R. 11,996 Tony DUCKETT, Petitioner-Appellant, v. Salvador GODINEZ; Brian McKay, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 734

67 F.3d 734

64 USLW 2238, 95 Cal. Daily Op. Serv. 6979,

95 Daily Journal D.A.R. 11,996

Tony DUCKETT, Petitioner-Appellant, v. Salvador GODINEZ; Brian McKay, Respondents-Appellees.

No. 93-17036.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted April 7, 1995.

Decided Sept. 5, 1995.

John C. Lambrose, Assistant Federal Public Defender, Las Vegas, Nevada, for petitioner-appellant.

John E. Simmons, Deputy Attorney General, Carson City, Nevada, for respondents-appellees.

Appeal from the United States District Court for the District of Nevada.

Before: BRUNETTI, THOMPSON and HAWKINS, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

OVERVIEW

Tony Duckett is a Nevada state prisoner serving a sentence of life imprisonment without the possibility of parole. He was convicted of burglary and two counts of first-degree murder. He appeals the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. He alleges the State of Nevada violated his rights to a fair trial and sentencing hearing because (1) the trial court improperly took an active role in the prosecution of his case; (2) the prosecutor improperly offered his personal opinions to the jury; (3) the trial court failed to give the jury a proposed alibi defense instruction and instructions regarding eyewitness testimony; and (4) he was forced to wear prison clothes and shackles before his sentencing jury.

We have jurisdiction under 28 U.S.C. Sec. 2253. We reject all of Duckett's arguments pertaining to his conviction. We also reject his contention that he was entitled to appointed counsel in his habeas corpus proceeding. We conclude, however, that Duckett's due process rights under the United States Constitution were violated when he was required to appear in shackles in front of his state court sentencing jury. We remand this cause to the district court with instructions to conduct an evidentiary hearing on the issue whether the shackling error was harmless.

FACTUAL BACKGROUND

On the evening of January 31, 1986, at approximately 9:30 p.m., Elmo and Margaret Armstrong were murdered in the house they shared with their granddaughters Latosha Armstrong and Ursula Page. Each victim suffered several gunshots to the head. At the time of the murders, Latosha and Ursula, approximately eighteen and sixteen years of age, respectively, were present in the home.

At trial, Latosha testified that shortly before the murders, while she and her sister were watching television in the family room, she heard someone knocking loudly on the front door. She then heard a sound like "someone knocking up against a wall." Curious about the noise, Latosha began walking toward the kitchen. As she approached the kitchen, she heard her grandfather say, "Tony," and then her grandmother say, "Tony, what are you doing?" Moments later, she heard four or five gunshots, after which her grandmother exclaimed, "Oh, no. God. Oh, no." Then more shots were fired. At that point, Latosha ran back into the family room and out the side door.

Ursula, who had remained in the family room, testified that she also heard her grandparents call out the name "Tony" before they were shot. Then, when Latosha ran out of the house, Ursula followed her. Ursula testified that, once outside, she "saw a person running in front of my sister, and then I saw my sister, and then I saw a person run past me and behind her." Both people were carrying what apparently were rifles or shotguns. Fearing that her sister would be shot, Ursula screamed. This prompted the person who had run past her to look back over his shoulder. When he did so, Ursula recognized him as her grandfather's nephew, Tony Duckett.

At trial, Duckett argued he had been misidentified. He testified that on the evening of the murders he was with his brother, Kevin Duckett, and his friends, Francis Gilkey and Brenda Montgomery, ingesting cocaine and marijuana at Gilkey's home. He claimed that he and Kevin had arrived at Gilkey's home around 8:30 p.m. and, although Kevin left earlier, he remained until after 10:00 p.m. Duckett's brother and friends testified on his behalf as alibi witnesses.

The jury convicted Duckett of one count of burglary and two counts of first-degree murder, and sentenced him to life without the possibility of parole. Duckett appealed to the Nevada Supreme Court, which affirmed his conviction in Duckett v. State, 104 Nev. 6, 752 P.2d 752 (1988).

Duckett did not seek collateral review in the Nevada courts. Instead, he filed a habeas corpus petition in the United States District Court for the District of Nevada

                under 28 U.S.C. Sec. 2254. 1  The district court denied the petition and this appeal followed
                

STANDARD OF REVIEW

We review de novo a district court's decision to deny a petition for habeas corpus. Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir.1994).

DISCUSSION

I. Judicial Misconduct

Duckett argues he was denied a fair trial because the state trial court judge actively participated in the prosecution of his case and showed open hostility to the defense. He points to various instances throughout his trial in which the trial judge, Judge Goldman, intervened in the examination of prosecution witnesses, sometimes interjecting specific questions and other times taking over the questioning altogether. In several of these instances, the judge elicited testimony which was helpful to the prosecution and detrimental to the defense. Duckett also complains that the trial judge's overall attitude toward defense counsel and witnesses was hostile and sarcastic, and demonstrated a lack of impartiality.

The appropriate role for a judge to play in a jury trial has been the subject of a number of appeals. We have said a trial judge must always remain fair and impartial. Kennedy v. Los Angeles Police Dep't, 901 F.2d 702, 709 (9th Cir.1989). He " 'must be ever mindful of the sensitive role [the court] plays in a jury trial and avoid even the appearance of advocacy or partiality.' " Id. (quoting United States v. Harris, 501 F.2d 1, 10 (9th Cir.1974)). At the same time, however, we have recognized that a trial judge is "more than an umpire." United States v. Laurins, 857 F.2d 529, 537 (9th Cir.1988), cert. denied, 492 U.S. 906, 109 S.Ct. 3215, 106 L.Ed.2d 565 (1989). It is perfectly appropriate for a judge to "take part where necessary to clarify testimony and assist the jury in understanding the evidence." United States v. De Sisto, 289 F.2d 833, 834 (2d Cir.1961). See also Laurins, 857 F.2d at 537 (trial judge "may participate in the examination of witnesses to clarify evidence, confine counsel to evidentiary rulings, ensure the orderly presentation of evidence, and prevent undue repetition"); United States v. Mostella, 802 F.2d 358, 361 (9th Cir.1986) (same); United States v. Poland, 659 F.2d 884, 893 (9th Cir.) (finding questions calculated to make testimony clearer to jury not improper), cert. denied, 454 U.S. 1059, 102 S.Ct. 611, 70 L.Ed.2d 598 (1981).

In this case, the Nevada Supreme Court found that several of Judge Goldman's comments were "inappropriate" and his questioning of witnesses was at times "overzealous." Duckett v. State, 104 Nev. 6, 752 P.2d 752, 756 (1988). Nonetheless, that court determined the error, if any, was not prejudicial. Id. The district court, in denying Duckett's habeas corpus petition, concluded that Judge Goldman's conduct did not rise to the level of a constitutional violation and, therefore, did not require reversal of Duckett's conviction. ²

We agree with the district court. In reviewing cases on direct appeal, in the exercise of our supervisory powers over the district courts, we have stated that "[t]he standard for reversing a verdict because of general judicial misconduct during trial is rather stringent." Kennedy, 901 F.2d at 709. To sustain a claim of this kind, there must be an "extremely high level of interference" by the trial judge which creates "a pervasive climate of partiality and unfairness." United States v. DeLuca, 692 F.2d 1277, 1282 (9th Cir.1982). See also Laurins, 857 F.2d at 537 ("A judge's participation [in the trial] justifies a new trial only if the record shows actual bias or leaves an abiding impression that the jury perceived an appearance of advocacy or partiality.").

Because this case comes to us in the posture of a habeas appeal, the question is not simply whether the trial judge committed judicial misconduct or whether we, in our supervisory capacity over the district courts, would reverse a conviction obtained after a trial in which a federal judge behaved in the same manner. Rather, we must ask whether the state trial judge's behavior rendered the trial so fundamentally unfair as to violate federal due process under the United States Constitution. Gayle v. Scully, 779 F.2d 802, 806 (2d Cir.1985), cert. denied, 479 U.S. 838, 107 S.Ct. 139, 93 L.Ed.2d 82 (1986); McBee v. Grant, 763 F.2d 811, 818 (6th Cir.1985).

Several instances of judicial intervention of which Duckett complains were clearly appropriate even by the standard we apply on direct review. For example, when testimony by a prosecution witness involved the lifting of latent fingerprints, Judge Goldman interrupted and asked the witness to "tell the members of the jury what a latent fingerprint is." When a police officer testified that a photograph presented by the prosecutor was a fair and accurate representation of the crime scene, the judge had the officer clarify that he had observed the scene from a different angle. On another occasion, Judge Goldman asked one of the state's expert witnesses to explain the difference between casings, bullets and slugs, and the distinction between the methods of operation of semi-automatic and single-action weapons. And, when the prosecutor asked Latosha about the location of street and porch lights at or near her grandparents' house, the judge interrupted to clarify whether the lights were on or off on the...