Green v. White

• Decision Date: 13 November 2000
• Docket Number: No. 99-17124,99-17124
• Parties: (9th Cir. 2000) PAUL GREEN, Petitioner-Appellant, v. THEO WHITE, Warden, Respondent-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 671

232 F.3d 671 (9th Cir. 2000)

PAUL GREEN, Petitioner-Appellant, v. THEO WHITE, Warden, Respondent-Appellee.

No. 99-17124

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 16, 2000

Filed November 13, 2000

Michael Satris, Law Offices of Michael Satris, Bolinas, California, for the petitioner-appellant.

Ronald S. Matthias, Supervising Deputy Attorney General, and Herbert Wilkinson, Deputy Attorney General, San Francisco, California, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California Susan Yvonne Illston, District Judge, Presiding. D.C. No.CV-96-02671-SI

Before: Donald P. Lay,¹ Dorothy W. Nelson and Sidney R. Thomas, Circuit Judges.

LAY, Circuit Judge:

Paul Green appeals the district court's denial of his petition for a writ of habeas corpus following his state court conviction for two counts of first degree murder and other charges in connection with a drive-by shooting. Green asserts three grounds upon which a writ of habeas corpus should be granted: (1) a juror, Eugene Adams, engaged in prejudicial misconduct by concealing a felony conviction that would have disqualified him from jury service under California law; (2) a new juror was substituted for the lone holdout juror; and (3) accumulated prejudice from several errors denied him a fair trial. Based on the misconduct of the juror Adams,² we reverse the district court's decision and remand the case with instructions.

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. S 2254(d)(1), we can only issue a writ of habeas corpus if the state court's adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Section 2254(d)(2), however, allows this court to issue a writ of habeas corpus if the state court's decision "was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." ³ 28 U.S.C. S 2254(d)(2).

We reverse the district court's denial of the writ of habeas corpus under S 2254(d)(2). We find that the state trial court as well as the California Court of Appeals made factual assumptions not supported by the evidence; we also find that the state trial court abdicated its factfinding responsibility and left it to the appeals court to determine whether the petitioner had shown bias by reason of the misconduct of the juror Adams.

Background

Eugene Adams served as the first jury foreman in Green's trial. Adams had several encounters with the law, including a felony conviction for passing bad checks in 1965, a conviction for assault, and an arrest for robbery. As a result of his felony conviction, Adams was not eligible to serve as a juror in California. See Cal. Code of Civ. Proc.S 203(a)(5). Because of a pattern of misleading statements, however, he concealed his criminal history from the trial court, and sat on Green's jury.

The jury questionnaire form sent to Adams before trial asked whether he had ever been convicted of a felony; Adams replied that he had not. When Adams was questioned about this misstatement at the post-trial hearing, he gave contradictory testimony. First, he said that his wife filled out the form and answered the questions. When asked why his wife incorrectly filled in the questionnaire, he replied "you have to understand my wife is 71 years old and she doesn't know the difference between misdemeanor and felonies." See Excerpts of Record (ER) at 322-323. Immediately thereafter, he contradicted these statements, observing:

Q. So she read [the jury questionnaire] to you and you answered it with her, is that right?

A. I know she did.

Q. And she asked you and she read to you the question, "Have you ever been convicted of a felo ny?" Isn't that true?

A. I am quite sure she went down through every thing.

Q. And she put down the answers you gave her, is that right?

A. Apparently.

Id. at 323. Later he reiterated this point, stating:

Q. Did you instruct her as to any of the answers that should be given?

A. Yes. She would -you mean the jury question naire?

Q. Yes, sir.

A. Well, she read down the lines and she was just checking them off.

Q. And she checked them off based on your answers?

A. Yes, more or less.

Id. at 386.

Adams' second falsehood⁴ occurred at voir dire, where potential jurors were asked the following question:"Have any of you or any member of your family or any close friends to your knowledge ever been arrested, charged or arrested for these types of crimes similar to in case [sic], shootings, murders, any kinds of assaults?" Id. at 56. Adams had been convicted of assault while in the Army and served six months in the brig. He did not reveal this fact.

In addition to these false statements, Adams was involved in several incidents that impeach his impartiality. When thejury retired, at least two jurors heard Adams say something to the effect that he knew Green was guilty the moment he saw him. See id. at 33-34, 39-40. At the evidentiary hearing before the state trial court, Adams had a variety of responses to this accusation. First he claimed, "I never made the statement `I knew Paul Green was guilty before the evidence,' " and then, "I don't remember saying `I knew he was guilty the minute I saw him,' " and finally, "If I said `I knew he was guilty the minute I saw him.' I meant to express how strongly I believed he was guilty." Id. at 82. His post-trial testimony clearly contradicted the statements in his declaration:

Q. Do you recall saying anything to the effect that you would like to shoot Mr. Green?

A. I would like to shoot him?

Q. Yes, sir.

A. No, I don't

. . . .

Q. Did you ever make a statement to [a particular juror] to the effect that "I knew Paul Green was guilty the minute I saw him"?

A. Well, I am not a Rhodes scholar, but that would be stupid; no Q. The question is -so your answer is that you did not say that?

A. I did not tell [a particular juror] that.

. . . .

Q. Did you ever make a statement to anybody in the jury during the deliberations that "I knew Paul Green was guilty the minute I saw him"?

A. I made that statement when the trial was over; when the trial was over.

14463

Q. To whom did you make it?

A. In the jury room.

Q. Who did you make that statement to?

A. To everybody.

Id. at 373-374.

Juror Jones (the juror who was later dismissed) claimed to overhear Adams say he wished the "judge would let him go back to his place so he could get his piece" and shoot Green. Id. at 40. In response to this charge, he testified:

Q. Okay. Did you ever say something like you'd like to shoot him down if you had a gun yourself?

A. Shoot him down? I think I did make a statement and say that it's a shame that, but I didn't make it to the jury, but I did -I did say something to the effect it's a shame that this state has to go through all of this and it just seems like the wrong people have too many rights. It just seemed that way. I didn't say this to the jury.

. . . .

Q. Did you ever mention something like if you had a gun you would shoot Paul Green yourself or some thing like that?

A. I mentioned something like which I shouldn't have mentioned that that should be done.

Id. at 72, 74.

State Court Proceedings

Although the state trial court found Adams' behavior upsetting, it refused to order a new trial. Regarding Adams' false answer about his felony conviction, the trial court believed it was an open question whether his civil rights had been restored, thus: "[I]t may well be that Mr. Adams question had it been asked, have you ever been convicted of a felony and not had your civil rights restored . . . . In other words, it may not be a false answer to the question if his civil rights had been restored." Id. at 245. Assuming they had not, the trial court said:

[O]ne would have to conclude that his answer to this question was false. So he gave a false answer to a specific question in voir dire so prejudice is presumed . . . . Here if Mr. Adams falsely answered this question, the inability to get a correct answer meant that someone would not have been able to knock out a juror who's otherwise ineligible. That is in a front (sic) to the system . . . . But I'm not prepared to say one way or the other that this is acceptable given that the fact that this . . . ineligible juror is in a front (sic) to the system, but I think any reviewing authorities are going to have to look at the totality of the circumstances and make their own decision.

Id. at 245-46.

On the question of bias, the trial court believed there were two possible foundations for this argument. The first was Adams' statement that Green was guilty the moment he saw him. The court decided that this statement was explained by the "rough and tumble" of jury deliberations, which should be "open and free and jurors should be able to make outlandish expressions." Id. at 248. Thus, this statement did not convince the trial judge that Adams was biased.

The other possible foundation for bias was Adams' misstatements at voir dire. The court rejected this ground, holding: "So, at this point I can't find that Mr. Adams failed to answer honestly or deliberately concealed questions . . . for two grounds. One, the questions were sufficiently vague and two, some of these were so remote that one could expect a juror to forget about them." Id. at 247.

The California Court of Appeals affirmed the trial court's judgment. As to Adams' misstatements about his felon status, the appellate court felt, contrary to the trial court's musings, "[h]ad juror Adams' felony conviction been known, the trial court would have been obligated to strike him from the jury panel; no peremptory challenge would have been necessary." People v. Green, 31 Cal. App. 4th 1001, 1019 (1995). Nevertheless, the appellate court upheld the...