Gonzales v. Thomas
| Citation | 99 F.3d 978 |
| Decision Date | 05 November 1996 |
| Docket Number | No. 95-2279,95-2279 |
| Parties | Larry GONZALES, Petitioner-Appellant, v. John THOMAS, Warden; Attorney General of the State of New Mexico, Respondents-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Joseph W. Gandert, Assistant Federal Public Defender, Albuquerque, NM, for Petitioner-Appellant.
Max Shepherd, Assistant Attorney General (Tom Udall, Attorney General of New Mexico, with him on the brief), Santa Fe, NM, for Respondents-Appellees.
Before TACHA, BALDOCK and BRORBY, Circuit Judges.
Larry Gonzales, a prisoner of the State of New Mexico, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Gonzales claimed his state conviction violated, among others, 1 his right under the Sixth Amendment to an impartial jury. The respondent conceded Mr. Gonzales had exhausted his state remedies. After an evidentiary hearing, a federal magistrate judge issued proposed findings and recommended Mr. Gonzales's petition be dismissed with prejudice. Over Mr. Gonzales's objections, the district court adopted the magistrate judge's proposed findings and dismissed the habeas petition with prejudice. After Mr. Gonzales filed his notice of appeal, the district court issued an order denying him a certificate of probable cause. Finding that Mr. Gonzales has made the requisite "substantial showing of the denial of" his constitutionally protected right to an impartial jury, 28 U.S.C. § 2253, we grant Mr. Gonzales a certificate of appealability. See Antiterrorism and Effective Death Penalty Act of 1996 § 102, Pub.L. No. 104-132, 110 Stat. 1214 ( 28 U.S.C. § 2253); Lennox v. Evans, 87 F.3d 431 (10th Cir.1996). As explained below, we affirm the judgment of the district court.
In October 1988, Mr. Gonzales was charged by information in the Seventh Judicial District of the State of New Mexico with three counts. Count One accused Mr. Gonzales of criminal sexual penetration in violation of N.M.S.A. § 30-9-11(A). Count Two alleged Mr. Gonzales used a firearm to commit Assault with Intent to Commit a Violent Felony in violation of N.M.S.A. §§ 30-3-3 and 31-18-16. Count Three accused Mr. Gonzales of Bribery of a Witness with the use of a firearm in violation of N.M.S.A. §§ 30-24-3(C) and 31-18-16 or N.M.S.A. §§ 30-16-9(A) and 31-18-16. Mr. Gonzales pleaded not guilty to the charges against him, and the case was tried to a jury.
The charges against Mr. Gonzales arose from a visit to his wife's cousin, the victim. 2 On the evening of the incident, the victim and her young daughter were at the victim's sister's apartment. The victim was babysitting her niece. Mr. Gonzales arrived at the apartment carrying two bottles of an alcoholic beverage composed of orange juice and whiskey. Mr. Gonzales and the victim played a drinking game that caused the victim to become intoxicated. The victim testified that after the game ended Mr. Gonzales made sexual advances that she resisted. According to the victim, Mr. Gonzales knocked her unconscious and when she regained consciousness, she discovered he was raping her. The victim also testified that Mr. Gonzales threatened to harm her daughter and niece with a gun unless she submitted to him. Though the victim claimed Mr. Gonzales molested the two girls, the record does not indicate he was ever charged for such a crime. At some point during the evening, the victim's sister called home and the victim answered the phone. According to the victim, Mr. Gonzales threatened her with a gun and said, "Don't tell her I'm here."
The New Mexico jury found Mr. Gonzales guilty of Counts One and Three, but found he had not used a firearm in the commission of Count Three. The jury found Mr. Gonzales not guilty of Count Two. After accepting the jury's verdicts, the state court sentenced Mr. Gonzales to eighteen years of imprisonment for Count One, three years for Count Three--the two sentences to run concurrently--plus two years of parole following incarceration.
Sometime after his conviction, Mr. Gonzales discovered one of the jurors for his trial had been a rape victim prior to serving on the jury and had discussed her rape experience during the jury's deliberation of his case. In his federal habeas petition, Mr. Gonzales claimed this juror improperly concealed her rape experience during voir dire and that had she divulged this information, she would have been subject to a valid challenge for cause. Mr. Gonzales requested the district court to conduct an evidentiary hearing on the issue of whether his right to an impartial jury had been violated. In the course of Mr. Gonzales's direct appeals and state habeas proceedings in New Mexico state courts, he had not received such a hearing. Pursuant to Mr. Gonzales's request, a federal magistrate judge conducted an evidentiary hearing on the issue of jury impartiality.
The evidentiary hearing and the state trial court record reveal the following relevant facts. At the opening of voir dire in Mr. Gonzales's state prosecution, the judge addressed the prospective jurors and described the case as follows:
The defendant stands charged with three separate offenses.... The information specifically charges that the defendant committed the following crimes. Count 1: Criminal sexual penetration in the first degree, in that the defendant did, on or about the nineteenth day of September, 1988, unlawfully and intentionally cause [the victim], who was not the defendant's spouse, to engage in sexual intercourse, anal intercourse, or the causing of penetration, to any extent and with any object, of the genital or anal openings of another by the use of force or coercion resulting in great mental anguish, contrary to our New Mexico statutes.
Count 2: Assault with intent to commit a violent felony, in that the defendant did on or about the said date assault the victim with the intent to commit criminal sexual penetration in the first degree and did so with a firearm, contrary to our New Mexico statutes.
Count 3: Extortion, in that the defendant did, on or about the said date, by communication or transmission threaten another, to wit the victim, by any means whatsoever with intent thereby to wrongfully compel the said person threatened to do or refrain from doing any act against her will, and said threat was to unlawfully injure the person threatened or another, and did so with a firearm, contrary to our New Mexico statutes.
In addition to what they learned about the alleged crimes from the trial judge's description, the prospective jurors were told during the course of voir dire that the victim's young daughter and niece also may have been victims. The jurors also learned that both the alleged victim and Mr. Gonzales had been drinking alcohol and that Mr. Gonzales contended his accuser consented to sexual intercourse.
During voir dire, a prospective juror indicated that two of her relatives had gone to trial on similar charges a few years before. In response to this revelation, the judge called the attorneys to the bench and explained: Neither party objected, and the judge excused the juror.
After the judge excused three more prospective jurors, the clerk called Sandra Kieft as a prospective juror. During the voir dire of Ms. Kieft, the judge asked, "Ha[ve] you or has any member of your immediate family ever been involved in a similar type of, uh, incident?" Ms. Kieft responded, "No." The judge then asked Ms. Kieft, "Do you know of any reason Ms. Kieft why you could not serve as a fair and impartial juror in this case?" Though no answer is audible on the trial tape, the trial judge's response indicates Ms. Kieft answered no to this question. Neither Mr. Gonzales nor the state objected to Ms. Kieft serving on the jury, and she was empaneled.
During the evidentiary hearing before the federal magistrate judge, the magistrate judge heard the sworn testimony of Ms. Kieft and two other jurors who served on the jury that convicted Mr. Gonzales. This hearing revealed Ms. Kieft had been "date raped" in 1965. At the time, she was nineteen years old and in school.
Ms. Kieft testified she did not recall being asked, prior to serving on Mr. Gonzales's jury, whether she or any member of her family had been the victim of a crime similar to those charged against Mr. Gonzales. She testified that had she been asked that question she would have answered she was not such a victim. Asked to elaborate on this answer, Ms. Kieft explained:
I think the circumstances of the events of my past that I was referring to [were] very different from the circumstances that were represented in the case that we were hearing. The similarity was that alcohol was involved.
The dissimilarities were that there was no weapon, I had willingly gone out with this person on a date. I had not had this person intrude into my home. I had no children who were present or who were involved at the time.
The events were something that I would avoid in the future, but it was not something that traumatized my life.
Ms. Kieft testified her rape did not have a significant impact on her life other than to make her realize it "was a really bad situation" she would not want to be in again. Upon being asked whether her rape experience led her to identify with the victim in Mr. Gonzales's case, she answered: Ms. Kieft asserted her past experiences were not on her mind when she was trying to determine Mr. Gonzales's guilt or innocence.
When asked whether a discussion of her rape came up during jury deliberations in Mr. Gonzales's case, Ms. Kieft admitted she had mentioned her...
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