Gibson v. Clanon

• Citation: 633 F.2d 851
• Decision Date: 08 December 1980
• Docket Number: No. 79-2680,79-2680
• Parties: 7 Fed. R. Evid. Serv. 642 Earl B. GIBSON, Appellant, v. Thomas L. CLANON, Superintendent, Vacaville Medical Facility, Vacaville, California, Appellee. Lawrence JUSTICE, Appellant, v. George SUMNER, Superintendent, Correctional Training Facility, Soledad, California, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 851

633 F.2d 851

7 Fed. R. Evid. Serv. 642

Earl B. GIBSON, Appellant, v. Thomas L. CLANON, Superintendent, Vacaville Medical

Facility, Vacaville, California, Appellee.

Lawrence JUSTICE, Appellant, v. George SUMNER, Superintendent, Correctional Training

Facility, Soledad, California, Appellee.

No. 79-2680.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 10, 1980.

Decided Dec. 8, 1980.

Marvin Stender, Stender & Stender, San Francisco, Cal., for appellant.

Ronald E. Niver, Deputy Atty. Gen., San Francisco, Cal., for appellee.

Appeal from the United States District Court for the Northern District of California.

Before MERRILL, Circuit Judge, MARKEY, ^* Chief Judge and BOOCHEVER, Circuit Judge.

BOOCHEVER, Circuit Judge:

This is an appeal from a judgment of the District Court for the Northern District of California denying petitioners' writ of habeas corpus. The two petitioners, Gibson and Justice, are presently serving life sentences in California state prisons for the 1973 murder conviction of a prison guard at San Quentin. Gibson and Justice allege that the trial jury that convicted them impermissibly relied upon facts that were not in evidence. In doing so they claim they were denied their constitutional right to a fair trial. The district court, which reviewed the state court record, but did not take additional evidence, concluded that any error that may have occurred was harmless beyond a reasonable doubt. Our review of the historical facts in this case convinces us that there is a reasonable possibility that the jury's consideration of facts not introduced into evidence contributed to the jury's verdict. Accordingly, we reverse the judgment.

On July 21, 1971, Leo Davis, an unarmed guard at the San Quentin prison hospital, was stabbed to death. The state's case linking Gibson and Justice to the crime was based principally upon the testimony of three witnesses and the introduction of certain physical evidence.

The state's chief witness was Herman Johnson who testified that he was an eyewitness to the killing. On July 19, 1971, Johnson claimed he was stabbed in the neck by Gibson and Justice shortly after he had been transferred to San Quentin from Soledad. The attack was allegedly provoked by Johnson's willingness to give a statement implicating other inmates in a crime committed at Soledad. After the attack, Johnson was taken to the prison hospital where he was placed in a room on the second floor. Davis was stationed in the hallway outside his door.

According to Johnson, at around noon on July 21 he caught a glimpse of Gibson through a window in the door to his room and heard scuffling. He testified that upon going to the door he was able to see Gibson and Justice stab Davis while a third man held him.

The defendants impeached Johnson's testimony with the testimony of other inmates who stated that they had witnessed the July 19 attack on Johnson, and Gibson and Justice were not among the attackers. The defense implied that there was a possibility that Johnson's testimony was biased because a decision on a parole violation committed by Johnson was allegedly held in abeyance until after his testimony at the trial. The defense also introduced evidence indicating that Johnson had a poor reputation for veracity.

Johnson's eyewitness account was corroborated by two other prosecution witnesses. Another inmate with the last name of Johnson, Charles Johnson, testified that he had seen Gibson, Justice and a third man in a shower room on the second floor of the hospital within a short time of when the murder occurred.

There was also testimony from Ivan Kranzelic who shared a hospital ward on the fourth floor with Gibson. Gibson had gained admittance to the hospital after allegedly suffering an injury in football practice the day before the murder. Kranzelic testified that on the morning of July 21 he had seen an inmate give a prison-made knife to Gibson, who in turn gave it to Justice. Kranzelic overheard Gibson make various statements such as they would have to do "it" that day. Around noon, Gibson, Justice, and a third inmate left the ward and returned about twenty minutes later. Kranzelic testified that Justice's hand was bleeding when he returned and, as he sat on Gibson's bed, he used a roll of toilet paper to try to stop the bleeding. At the time these events were alleged to occur Kranzelic was recovering from foot surgery and had been given several doses of morphine.

At trial the state introduced evidence showing that the murder victim had blood type "O." Justice had blood type "AB." It was further shown that the blood stains found on the murder weapon, on Gibson's bed where Justice had sat, and on the roll of toilet paper, which was also recovered, all were of blood type "AB."

The trial lasted from December 1972 until April 1973. The jury deliberated for two and a half days before returning a guilty verdict on April 18, 1973. A month later, on May 17, 1973, Gibson and Justice made a motion for a new trial on the grounds that the jury had impermissibly relied upon evidence not produced in court. Affidavits submitted by the jurors reveal two incidents of misconduct.

At one point during the deliberations, Juror Colin Grist went to an encyclopedia to confirm his belief that blood type "AB" was rare. He reported his findings back to other members of the jury. Jurors Chapman, Gauger and Cox remembered some comment by Grist. Grist was unsure whether he made the comment before or after the balloting on Justice.

Another juror, Mona Gauger, stated that while the jury was considering Kranzelic's testimony she had commented on the dosage of morphine. Other jurors were unsure what effect the morphine may have had on Kranzelic, which Gauger interpreted as a request for more information. She then consulted a medical encyclopedia from which she apparently concluded that the morphine dosage was too small to have affected Kranzelic's perceptions. At least eight other jurors remembered some comment by Gauger, but there was some disagreement as to exactly what she had said.

In both cases there were apparently some comments in the jury room to the effect that the jury should not consider this evidence.

The trial judge denied the motion for a new trial. In his oral ruling the judge considered the applicable test to be that of People v. Watson, 46 Cal.2d 818, 299 P.2d 243, 254 (Cal.1956), cert. denied 355 U.S. 846, 78 S.Ct. 70, 2 L.Ed.2d 55 (1957), which, in the courts of California, requires reversal for an error when it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Emphasis added.) The judge specifically declined to apply the stricter test of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), which requires, in the case of federal constitutional errors, that the error be harmless "beyond a reasonable doubt."

In his ruling, the judge twice indicated that were he to apply the Chapman standard, he would have granted the motion:

I will state for the record that I cannot say that it (the jury misconduct) was harmless beyond a reasonable doubt.

... I don't think the Chapman case applies to this situation. If it does and I were to apply it, I would feel, I think, compelled to reach a different result.

The trial judge's decision was affirmed by an unpublished opinion of the California Court of Appeal. Petitions for certiorari to the California Supreme Court and the United States Supreme Court were denied. In denying the petitioners' subsequent writ of habeas corpus, the federal district court judge did not specifically decide whether the jury misconduct in this case amounted to constitutional error, but concluded that if there were constitutional error it was harmless beyond a reasonable doubt.

We first must decide whether the California trial judge applied the appropriate test in determining the effect of the impermissibly considered evidence. In United States v. Vasquez, 597 F.2d 192 (9th Cir. 1979), we defined the test to be applied when a jury acquires evidence that has not been introduced into the record.

(T)he appellant is entitled to a new trial if there existed a reasonable possibility that the extrinsic material could have affected the verdict.

597 F.2d at 193 (emphasis added). The "reasonable possibility" test of Vasquez is equivalent in severity to the harmless error rule applicable to constitutional errors under Chapman. ¹

Vasquez involved a direct appeal from a trial in a federal district court. Therefore, although it is intimated by the opinion, there was no need to decide whether the " reasonable possibility" test is compelled by constitutional considerations that would make it applicable to the collateral review of a state court judgment. ² We now conclude that the Vasquez test is compelled by constitutional considerations.

In Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), the Court refers to sixth amendment rights in considering the impact of outside influence on a jury:

In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the "evidence developed" against a defendant shall come from the witness in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel.

379 U.S. at 472-73, 85 S.Ct. at 549-50. ³

Turner involved the possibility of prejudice created where the prosecution's leading witnesses were the same two deputy sheriffs who watched over the jury during the time it was sequestered for Turner's trial. Although the case did not involve the introduction of extra-record facts, the implication of the statement is that it would apply in such a case. ⁴ A year after Turner, the court reversed a state court decision where a court bailiff made various prejudicial statements about a defendant to...