Godoy v. Spearman

• Citation: 861 F.3d 956
• Decision Date: 30 June 2017
• Docket Number: No. 13-56024,13-56024
• Parties: Enrique Anthony GODOY, Petitioner–Appellant, v. Marion SPEARMAN, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

861 F.3d 956

Enrique Anthony GODOY, Petitioner–Appellant,
v.
Marion SPEARMAN, Respondent–Appellee.

No. 13-56024

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc March 22, 2017, San Francisco, California
Filed June 30, 2017

Stephanie Adraktas (argued), Berkeley, California, for Petitioner–Appellant.

James William Bilderback II (argued), Stephanie A. Miyoshi, and Colleen M. Tiedemann, Deputy Attorneys General; Lance E. Winters, Senior Assistant Attorney General; Gerald Engler, Chief Assistant Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent–Appellee.

Before: Sidney R. Thomas, Chief Judge, and Kim McLane Wardlaw, Raymond C. Fisher, Ronald M. Gould, Marsha S. Berzon, Johnnie B. Rawlinson, Milan D. Smith, Jr., N. Randy Smith, Paul J. Watford, Andrew D. Hurwitz and Michelle T. Friedland, Circuit Judges.

OPINION

FISHER, Circuit Judge:

One of the most fundamental rights in our system of criminal justice is the right to trial before an impartial jury. Its common law origin can be traced back to the Middle Ages. It was enshrined in the Sixth Amendment to the Constitution, and it has been embraced by the Supreme Court in numerous cases. The Court reaffirmed just last year that "the guarantee of an impartial jury ... is vital to the fair administration of justice." Dietz v. Bouldin , ––– U.S. ––––, 136 S.Ct. 1885, 1893, 195 L.Ed.2d 161 (2016).

Here we address a critical safeguard of an impartial jury, protecting the jury against improper influence from outside parties. Enrique Godoy—after being convicted by a jury of second-degree murder—claimed just such an improper outside influence and moved for a new, untainted trial. Specifically, he alleged that a juror (Juror 10) had communicated about the case while it was ongoing with a "Judge up North." According to an uncontroverted declaration from alternate juror "N.L.," Juror 10 "kept continuous communication" with the "judge friend" "about the case" and passed the judge's responses on to the rest of the jury.

Despite the troubling questions Godoy's allegations raised about the jury's impartiality, the California Court of Appeal upheld the jury's verdict. The court acknowledged that N.L.'s declaration

861 F.3d 959

demonstrated juror misconduct and raised a presumption that Godoy was thereby prejudiced. The court concluded, however, that the presumption was rebutted—not because the state made any showing to disprove prejudice, but because N.L.'s declaration itself failed to prove actual prejudice. The California Court of Appeal also affirmed the trial court's refusal to hold a hearing to determine whether prejudice in fact had occurred.

The state appellate court's decision was contrary to the clearly established Supreme Court law that the parties agree governs this case. The Court emphasized long ago that due process does not tolerate "any ground of suspicion that the administration of justice has been interfered with" by external influence. Mattox v. United States , 146 U.S. 140, 149, 13 S.Ct. 50, 36 L.Ed. 917 (1892), called into doubt on other grounds by Warger v. Shauers , ––– U.S. ––––, 135 S.Ct. 521, 526–27, 190 L.Ed.2d 422 (2014). Thus, when faced with allegations of improper contact between a juror and an outside party, courts apply a settled two-step framework. At step one, the court asks whether the contact was "possibly prejudicial," meaning it had a "tendency" to be "injurious to the defendant." Id. at 150, 13 S.Ct. 50. If so, the contact is "deemed presumptively prejudicial" and the court proceeds to step two, where the "burden rests heavily upon the [state] to establish" the contact was, in fact, "harmless." Remmer v. United States , 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954). If the state does not show harmlessness, the court must grant the defendant a new trial. See Remmer v. United States , 350 U.S. 377, 382, 76 S.Ct. 425, 100 L.Ed. 435 (1956) (Remmer II ). When the presumption arises but the prejudicial effect of the contact is unclear from the existing record, the trial court must hold a "hearing" to "determine the circumstances [of the contact], the impact thereof upon the juror, and whether or not it was prejudicial." Remmer , 347 U.S. at 229–30, 74 S.Ct. 450.

Here, the California Court of Appeal failed to adhere to this framework in three key respects. First, although the state court correctly acknowledged at step one that N.L.'s declaration raised a presumption of prejudice, it never required the state to rebut that presumption at step two. It concluded instead that the presumption was rebutted because Godoy's evidence failed to prove prejudice. But under Mattox and Remmer , Godoy was not required to prove prejudice at step two; once he triggered the presumption, the burden "rest[ed] heavily upon the [state]" to disprove prejudice. Id. at 229, 74 S.Ct. 450. Thus, in denying relief because Godoy's evidence did not prove prejudice at step two, the state court acted contrary to Mattox and Remmer .

Second, setting aside the state court's failure to hold the state to its burden, it was error for the court to rely on the very same statement from N.L.'s declaration both to raise the presumption of prejudice and to rebut it. This defies not only logic, but also the clearly established definition of a "presumption." It is well settled that a presumption can be rebutted only by other, contrary evidence. It is not enough, as the state court did here, to draw contrary inferences from the same statement that established the presumption in the first place.

Third, the California Court of Appeal denied Godoy a hearing on prejudice under the wrong legal rule. It held he had to show a "strong possibility" of prejudice, but Remmer requires a hearing whenever, as here, the presumption attaches but the prejudicial effect of the contact is unclear

861 F.3d 960

from the record. See id. at 229–30, 74 S.Ct. 450.

Because the state court's decision contravened these bedrock principles, it was "contrary to" clearly established Supreme Court precedent. 28 U.S.C. § 2254(d)(1). Furthermore, because Godoy established the presumption of prejudice, but it is unclear from the existing record whether he, in fact, suffered prejudice, Godoy is entitled to an evidentiary hearing. We therefore reverse the judgment of the district court and remand with instructions to hold a hearing to "determine the circumstances [of Juror 10's misconduct], the impact thereof upon the jur[y], and whether or not it was prejudicial." Remmer , 347 U.S. at 230, 74 S.Ct. 450.

I

A

Enrique Godoy was convicted of second-degree murder by a Los Angeles County Superior Court jury. A week before his June 12, 2006 sentencing, he moved for a new trial alleging that Juror 10 had improperly communicated about the case with a judge friend. Godoy argued that because Juror 10's misconduct "injected ... improper considerations into the jury's deliberations," "prejudice is presumed, [and] the prosecutor must rebut the presumption or lose the verdict." He argued that "once the court is informed of potential juror misconduct, the court must then conduct hearings to ascertain whether such misconduct has in fact occurred."

To substantiate his allegations, Godoy brought to the June 12 sentencing hearing alternate juror "E.M." The trial judge, apparently believing E.M.'s testimony would impermissibly impeach the jury's verdict, refused to hear live testimony from her, insisting instead that Godoy obtain a sworn declaration. See Pena–Rodriguez v. Colorado , ––– U.S. ––––, 137 S.Ct. 855, 861, 197 L.Ed.2d 107 (2017) (describing the no-impeachment rule). Moreover, because Godoy had not previously informed the state he intended to have E.M. testify, the state sought a continuance to interview her and discover what she had to say.

The trial court put the hearing over to June 29. To facilitate the state's discovery in the interim, the court obtained E.M.'s contact information and informed her that the state would likely contact her for an interview. E.M. gave her cell phone number and address, and she indicated her willingness to speak with the state. We do not know whether the state followed up with E.M., and the state never offered evidence from E.M. regarding Juror 10's communications.

On June 22, Godoy sent the prosecutor a declaration about Juror 10's misconduct, from alternate juror N.L., who wrote that

[d]uring the course of the trial, juror number ten kept continuous communication with a gentleman up north, who she referred to as her "judge friend." Juror number ten explained to us, the jury as a whole, that she had a friend that was a judge up north. From the time of jury selection until the time of verdict, juror number ten would communicate with her "judge friend" about the case via her T–Mobile Blackberry, a two way text paging system. When the jury was not sure what was going on or what procedurally would happen next, juror number ten would communicate with her friend and disclose to the jury what he said.

The state responded to N.L.'s declaration on June 27, two days before the continuation of sentencing. It offered no evidence contrary to the declaration. The state argued instead that the declaration was inadmissible and that it failed to show juror...